Harassment
Cases
Coleman
[2008] ICR 1128, [2008] All ER (EC) 1105, [2008] 3 CMLR 27
“The Community legislature adopted the Directive in order to protect, in the field of employment and occupation, people belonging to suspect classifications and to ensure that their dignity and autonomy is not compromised either by obvious and immediate or subtle and less obvious discrimination. An indication of how this is to be achieved is already apparent in Article 1 of the Directive, which reads: ‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’ (my emphasis).
The important words here are ‘on the grounds of’. It is a familiar proposition of both law and moral philosophy that not all discrimination is wrong. In the context of employment, for instance, it is perfectly acceptable for an employer to hire a candidate who is responsible, trustworthy and polite and exclude candidates who are irresponsible, untrustworthy and rude. Conversely, we think it is wrong to reject someone on the basis of his or her race or religion, and in most legal systems the law intervenes to prevent such discrimination from taking place. What determines whether the employer’s conduct is acceptable or not, and triggers the law’s intervention, is the ground of discrimination relied on by the employer in each case.
The fact that the wrongness of discrimination depends on the grounds upon which it is based is reflected in the way relevant legislation is structured. Virtually all anti-discrimination statutes prohibit discrimination on a number of specified grounds. This is the strategy followed by the Community legislature in the Directive which outlaws discrimination based on religion or belief, disability, age and sexual orientation. The main duty imposed by anti-discrimination legislation, such as the Directive, is to treat people in a certain way which is comparable to how others are treated. (11) By adopting the Directive the Council has made it clear that it is wrongful for an employer to rely on any of these grounds in order to treat an employee less well than his or her colleagues. As soon as we have ascertained that the basis for the employer’s conduct is one of the prohibited grounds then we enter the realm of unlawful discrimination.
In the sense described above, the Directive performs an exclusionary function: it excludes religious belief, age, disability and sexual orientation from the range of permissible reasons an employer may legitimately rely upon in order to treat one employee less favourably than another. In other words, after the coming into force of the Directive it is no longer permissible for these considerations to figure in the employer’s reasoning when she decides to treat an employee less favourably.
The Directive prohibits direct discrimination, (12) harassment (13) and indirect discrimination. (14) The distinguishing feature of direct discrimination and harassment is that they bear a necessary relationship to a particular suspect classification. The discriminator relies on a suspect classification in order to act in a certain way. The classification is not a mere contingency but serves as an essential premise of his reasoning. An employer’s reliance on those suspect grounds is seen by the Community legal order as an evil which must be eradicated. Therefore, the Directive prohibits the use of those classifications as grounds upon which an employer’s reasoning may be based. By contrast, in indirect discrimination cases the intentions of the employer and the reasons he has to act or not to act are irrelevant. In fact, this is the whole point of the prohibition of indirect discrimination: even neutral, innocent or good faith measures and policies adopted with no discriminatory intent whatsoever will be caught if their impact on persons who have a particular characteristic is greater than their impact on other persons. (15) It is this ‘disparate impact’ of such measures on certain people that is the target of indirect discrimination legislation. The prohibition of such discrimination ties in with the obligation of employers to accommodate those groups by adopting measures and designing their policies in a way that does not impose a burden on them which is excessive compared with that imposed on other people. (16) In this way, while the prohibition of direct discrimination and harassment operates as an exclusionary mechanism (by excluding from an employer’s reasoning reliance on certain grounds) the prohibition of indirect discrimination operates as an inclusionary mechanism (by obliging employers to take into account and accommodate the needs of individuals with certain characteristics). It is for this reason that even if we were to accept the argument of the United Kingdom Government that discrimination by association is clearly outside the scope of the prohibition of indirect discrimination that does not mean in any way that it also falls outside the scope of the prohibition of direct discrimination and harassment. On the contrary, including discrimination by association in the scope of the prohibition of direct discrimination and harassment is the natural consequence of the exclusionary mechanism through which the prohibition of this type of discrimination operates.
Ms Coleman’s case raises an issue of direct discrimination. As the order for reference makes clear, she is not complaining of the impact a neutral measure had on her as the mother and carer of a disabled child, but claims that she was singled out and targeted by her employer precisely because of her disabled son. Therefore, the issue for the Court is whether direct discrimination by association is prohibited by the Directive.
It is clear that had the claimant been disabled herself the Directive would have been applicable. In the present case, though, the allegation is that it was the disability of the claimant’s son which triggered the discriminatory treatment. Thus, the person who is disabled and the person who is the obvious victim or the object of the discriminatory act are not the same. Does this render the Directive inapplicable? Given my analysis up to this point, I think it does not.
As stated, the effect of the Directive is that it is impermissible for an employer to rely on religion, age, disability and sexual orientation in order to treat some employees less well than others. To do so would amount to subjecting these individuals to unjust treatment and failing to respect their dignity and autonomy. This fact does not change in cases where the employee who is the object of discrimination is not disabled herself. The ground which serves as the basis of the discrimination she suffers continues to be disability. The Directive operates at the level ofgrounds of discrimination. The wrong that it was intended to remedy is the use of certain characteristics as grounds to treat some employees less well than others; what it does is to remove religion, age, disability and sexual orientation completely from the range of grounds an employer may legitimately use to treat some people less well. Put differently, the Directive does not allow the hostility an employer may have against people belonging to the enumerated suspect classifications to function as the basis for any kind of less favourable treatment in the context of employment and occupation. As I have explained, this hostility may be expressed in an overt manner by targeting individuals who themselves have certain characteristics, or in a more subtle and covert manner by targeting those who are associated with the individuals having the characteristics. In the former case, we think that such conduct is wrong and must be prohibited; the latter is exactly the same in every material aspect. In both cases, it is the hostility of the employer towards elderly, disabled or homosexual people or people of a certain religious persuasion that leads him to treat some employees less well.
Therefore, if someone is the object of discrimination because of any one of the characteristics listed in Article 1 then she can avail herself of the protection of the Directive even if she does not posses one of them herself. It is not necessary for someone who is the object of discrimination to have been mistreated on account of ‘her disability’. It is enough if she was mistreated on account of ‘disability’. Thus, one can be a victim of unlawful discrimination on the ground of disability under the Directive without being disabled oneself; what is important is that that disability in this case the disability of Ms Coleman’s son was used as a reason to treat her less well. The Directive does not come into play only when the claimant is disabled herself but every time there is an instance of less favourable treatment because of disability. Therefore, if Ms Coleman can prove that she was treated less favourably because of her son’s disability she should be able to rely on the Directive.
Finally, the United Kingdom Government has argued that the Directive was adopted with a view only to the setting of minimum standards. The fact that the Council was acting in an area where competence remains largely within the power of the Member States would, according to that Government, support such a view. As a consequence, it is an issue for the Member States to decide whether or not to prohibit discrimination by association in the field of employment and occupation. I do not agree. First, the fact that an area is not fully harmonised or that the Community has only limited competence to legislate in no way implies that the intervention of Community law, whatever this may be, must take place at the lowest level. In other words, the fact that the Community has a limited competence in the field of fundamental rights does not mean that when it decides to exercise that competence it can provide only minimum standards of fundamental rights protection. Second, there is nothing in the Directive or its recitals indicating that such was the intention of the Council. On the contrary, recital 6, for instance, refers to ‘the importance of combating every form of discrimination’ (my emphasis). (17)
III Conclusion
For the reasons given above, I think that the Court should answer the question of the Employment Tribunal as follows:
Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation protects people who, although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person.”
Mr. A -v- An Electronics Company
DEC-E2004-065
1. CLAIM
1.1 The case concerns a claim by Mr. A that an Electronics Company directly discriminated against him on the ground of race in terms of section 6(2)(h) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to his conditions of employment. He also claims that he was victimised within the meaning of section 74(2) of the Act following the referral of his claim to the Tribunal.
2. BACKGROUND
2.1 The complainant who is English submits that a colleague made a derogatory reference to his nationality on 28 March 2003. He submits that following his complaint, management failed to deal with it in an appropriate manner and he was subsequently victimised in that management ignored him and gave him a written warning for leaving the workplace two minutes before the designated time. He also submits that his attempt to appeal the warning was ignored. The respondent rejects the contention that it failed to deal with the complainant’s complaint in an appropriate manner and submits that the employee who made the remark was reprimanded, she offered to apologise and gave an undertaking not to repeat the behaviour. The respondent also denies the allegation of victimisation.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 15 April 2003. On 3 December 2003, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 15 December 2003 and from the respondent on 30 January 2004. A submission in respect of victimisation was received from the complainant on 29 March 2004 and from the respondent on 14 June 2004. A joint hearing of the claim was held on 29 September 2004.
………
7. CONCLUSIONS OF THE EQUALITY OFFICER
7.1 In this case, the complainant alleges that the respondent directly discriminated against him on the race ground and that he was victimised. I will consider whether the respondent directly discriminated against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Act, 1998 and in contravention of section 8 and 32 of the Act in relation to his conditions of employment. I must consider (i) whether the complainant was harassed on the race ground. If I find that the complainant was so harassed, I must then consider (ii) whether the complainant’s employer is vicariously liable for the harassment and in the event that it is liable, consider as a defence (iii) whether the respondent took reasonable action to prevent the harassment occurring in the workplace. In this case, I will also consider the manner in which the respondent dealt with the complainant’s complaint of harassment. Additionally, I will consider the complainant’s claim that he was victimised within the meaning of section 74(2) of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Establishing a prima facie case
7.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“…. “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
7.3 More recently, the Labour Court has stated in relation to the burden of proof:
“It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.”2
7.4 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the race ground. Section 6(1) of the Employment Equality Act, 1998 provides that:
“Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
7.5 Part IV of the Employment Equality Act, 1998 deals, inter alia, with harassment on eight different grounds. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Section 32(1) provides, inter alia, that where an employee (E) harasses another employee (C) by reference to the relevant characteristic of C, i.e. on one of the grounds, at the place of employment or otherwise in the course of the employment of the person harassed, the harassment constitutes discrimination by the victim’s employer in relation to the employee’s conditions of employment. Section 32(5) provides that:
“For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.”
It is clearly the effect and intention of the Employment Equality Act, 1998 that employees are entitled to expect freedom from being harassed at work on the race ground by gestures, words and written material.
7.6 The complainant alleged that Ms. D stated in his presence “I hate those fucking English bastards coming over here.” The respondent in its written submission state
that Ms. D “the employee who made the offensive remarks on 28th March 2003, admitted same, ….” However, it appears from a summary of the investigation prepared by Mr. C that Ms. D did not specifically accept that she made the precise statement in question. In that summary, it is submitted that when questioned about the incident, Ms. D said “Those English bastards are not going to win us.” In any case, it is not in dispute that the words “English bastards” were used. In its defence, the respondent submitted at the hearing and relied heavily on the argument that the statement was not directed at the complainant and was taken out of context. This is entirely irrelevant in considering whether an act or conduct amounts to harassment within the meaning of section 32(5) of the Act. Taking into account the provisions of section 32(5) which consists of a subjective and objective test, I consider that the statement by Ms. D referring to “English bastards” constituted harassment of the complainant, as it was unwelcome to him and could reasonably be regarded, in relation to his nationality as offensive, humiliating or intimidating to him. I find that the complainant has established a prima facie case of discrimination on the race ground.
7.7 Whilst clearly not of any binding force in this jurisdiction, I note that there are a number of UK cases concerning negative comments in relation to Irish persons. For example, comments such as “thick Paddy”3 and “typical thick Paddy”4 have been considered by the UK Tribunals. An extract from a publication by the UK Commission on Racial Equality (again of no binding force) titled “Racial harassment: what employers can do about it” (page 9) is helpful in summarising the UK position. “Racial harassment may be deliberate and conscious. But it can also be unintentional; ‘I meant no offence’, or ‘It was just a joke’ is a common, sometimes genuine, protest when someone has been oblivious to another person’s feelings or sensitivities (see Case 2). Unlawful discrimination as defined by the Race Relations Act need not be conscious, and as a tribunal once remarked, ‘it certainly does not need to be motivated; the great majority of people believe they have no prejudices.’
While the intention of the perpetrator may provide an explanation for the harassment, it can never be an excuse. The industrial tribunals have consistently ruled that there can be ‘no degree of acceptability’ for racist banter and abuse in the workplace. The context is irrelevant, and any use of it is an expression of racial prejudice (see Case 3).”
Action taken by the respondent
7.8 In relation to the meeting on 2 April with Mr. C, the complainant submitted that Mr. C “sought my advice on what further steps to take.” In relation to the meeting on 3 April 2003, the complainant submitted that Mr. C “sought confirmation of my intention to make an official complaint. He advised me that due to his heavy workload that he would personally be unable to deal with my complaint and nominated Mr. H as the likely member of management who would deal with my complaint in due course.” The complainant stated that on 4 April 2003, he submitted a complaint in writing to Mr. H. He submitted that on 15 April 2003, Mr. C informed him that “he had interviewed all parties concerned (i.e. witnesses and [Ms. D]). He further informed me that “it” had been noted on [Ms D’s ] file.” The complainant further submits that he had a meeting with Mr. H on 18 April 2003 at Mr. H’s request at which Mr. H offered to run through his complaint. He submitted that Mr. H informed him that all parties had been interviewed and then queried his sick cert. He submitted that during the meeting, Mr. H read his complaint three times and offered to have any additions made and that on two separate occasions, he asked was there any part he wished to retract. The complainant also submitted that one of the persons he named as a key witness was not interviewed. The respondent disputes the complainant’s version of the meeting and submits that Mr. H enquired as to whether there had been any further incidents and the complainant declined to make any additions to his original complaint.
…………..
7.9 The respondent submitted that the complainant’s complaint was investigated by the company and appropriate action taken. It submitted that Mr. C, the Engineering and Production Manager was responsible for carrying out the investigation. It submitted that on Tuesday, 1 April 2003, the complainant sought a meeting with Mr. C to discuss his complaint in relation to the incident on Friday, 28 March 2003 and Mr. C then carried out an investigation. It submitted a copy of Mr. C’s summary report detailing witnesses interviewed. The report is undated and at the hearing, Mr. C clarified that the report was made on 3 April 2003. Mr. C submitted in his summary that when the complainant complained, he asked him whether there was any connection between a ban on radios (which had been introduced as a result of a complaint by Ms. D who held the position of Post Soldering Assembly Lead Operative in her role as supervisor with operational responsibility) and the fact that he had not reported the incident the day before and that the complainant denied that there was any connection.
7.10 The summary continues:
“I asked him what was his expectation, was he looking for an apology and he said he just wanted to make an official complaint. He entitled his complaint as “Racial discrimination or hatred of English people”. He appeared unhappy but gave no indication of what he expected. I tried to prompt him by suggesting various options but he still would not indicate what was the point of the complaint. I told him that we could not necessarily control what people say but the Company’s policy was that of equality across all races and nationalities. [X] didn’t seem too interested in this so we left it at that for the day.”
Mr. C then continued that on the following day, 2 April, he consulted with the complainant’s supervisor and Ms. D’s supervisor and that they confirmed that there was an ongoing conflict between the two parties. He submits that he then asked the complainant’s supervisor to send the complainant to him to confirm that he wanted to proceed and that there wasn’t any other underlying issue. The complainant confirmed he wanted to proceed and he then spoke to Ms. D and she stated that she said “Those English bastards are not going to win us.”
7.11 Mr. C submitted that he then spoke to Ms. D’s named witness and she said she could not remember the incident. He then spoke to two of the complainant’s witnesses and both confirmed that the words “English bastards” were used. Mr. C explained at the hearing that the reason he did not interview the third witness named by the complainant was that at that stage, he had interviewed three witnesses and confirmed that an incident had occurred. Mr. C’s summary of the investigation states that subsequently after discussion with the Plant Manager, Mr. H, it was decided to reprimand Ms. D “for behaviour unbecoming of a member of staff” and further states that the “decision to make this a formal warning would be determined by her response to counselling by me.” Mr. C concludes his report by stating that on 3 April, he met with Ms. D again and “repeated that her behaviour was not acceptable and that she should be more careful about how she spoke in front of other staff members.” He does not mention any reprimand in his summary and submitted that he “came away thinking that she could probably do with some supervisor management training as she has only just recently been made a permanent Lead Operative.”
7.12 It is clear from Mr. C’s summary of the investigation conducted by him that he was unclear how to proceed. For example, his initial reaction to the complainant’s complaint was to ask whether there was any connection between the complaint being made on Tuesday (as opposed to Monday) and the radio ban which was introduced the previous day. Additionally, Mr. C submitted that he asked the complainant what his expectation was and whether he was looking for an apology. Regarding the conclusion of the investigation, the respondent submitted in a letter to the Tribunal dated 8 September 2004, that “Details of the sanction that was imposed on Ms. D are recorded electronically on the company’s personnel system and details of such sanction are contained within Mr. C’s summary report…..” However, as mentioned at paragraph 7.10 above, Mr. C concludes his report by stating that on 3 April, he met with Ms. D again and “repeated that her behaviour was not acceptable and that she should be more careful about how she spoke in front of other staff members.”
7.13 Mr. C does not mention any reprimand and it is not clear that a reprimand was given to Ms. D particularly in the light of the statement in Mr. C’s summary which he submitted was prepared on 3 April 2003 (several months prior to the respondent’s written submission received in the Tribunal on 30 January 2004) and wherein he submits that the “decision to make this a formal warning would be determined by her response to counselling by me.”. It also appears that at that meeting, issues other than the complainant’s complaint were discussed. Mr. C’s summary of the investigation states “We then discussed other issues relating to her difficulty with getting certain staff in PSA to carry out their duties in the absence of her supervisor. I told her she could always call on me for help and support. At that point we concluded our meeting.” The complainant submitted that at the meeting with Mr. C on 15 April 2003, he was informed that all parties had been interviewed and “it” had been noted on Ms. D’s file. Mr. C did not provide a summary of his meeting with the complainant on 15 April 2003. As referred to at paragraph 7.11 above, in its written submission, the respondent submitted that “Details of the sanction that was imposed on [Ms. D] are recorded electronically on the company’s personnel system….”. At the hearing, it submitted that a one liner is recorded indicating that Ms. D verbally abused a fellow worker on 28 March 2003. It further submitted that its IT Department could not provide a printout of the written record. Mr. C submitted at the hearing that he reprimanded Ms. D for “inappropriate language”. I note that there was no reference by the respondent to Ms. D being reprimanded for having harassed the complainant on the nationality ground contrary to the Employment Equality Act, 1998 and I consider that the respondent did not appreciate the consequences of Ms. D’s conduct. The respondent’s contention that a sanction was imposed on Ms. D is not supported by Mr. C’s summary of the investigation or any documentary or other evidence. I, therefore, am not convinced that Ms. D was reprimanded in the form of a verbal warning as submitted at the hearing and if a verbal warning was given, I am not satisfied that the warning related to harassment of the complainant on the nationality ground contrary to the Employment Equality Act, 1998.
7.14 The respondent in its written submission stated that Ms. D offered to apologise. Mr. C submitted at the hearing that he could not remember why the offer by Ms. D to apologise was not passed on to the complainant. There are inconsistencies between the respondent’s submission received by the Tribunal on 30 January 2004 which stated that Ms. D “offered to apologise” and Mr. C’s summary of the investigation and conclusion which stated that Ms. D “was upset and claimed that it hadn’t happened like that, she said she was talking to someone else and that her comment was not directed at [the complainant].”. The latter shows no element of acceptance by Ms. D of her behaviour or offer to apologise to the complainant.
7.15 The respondent submitted in its written submission that it has “a comprehensive Bullying and Harassment Policy”. However, the document submitted to the Tribunal is titled “Anti-Bullying Policy” which states that the purpose of the Policy is “To ensure that all employees in [F] Electronics Ltd., are treated with respect and dignity. To be able to carry out their duties free from intimidation, humiliation or victimisation from whatever source.” It is not clear to me that the Policy deals with harassment within the meaning of the Employment Equality Act, 1998 and it appears to deal with bullying only. I consider that the respondent’s lack of clarity on how to deal with the complainant’s complaint was exacerbated by it not or informally. The complainant submitted a verbal complaint initially and when he felt that it was not being adequately dealt with, he submitted a complaint in writing to a more senior manager. It appears that the complainant was unclear who was investigating his complaint and believed that it was in fact Mr. H to whom he had made a written complaint. No attempt was made to conduct a formal investigation on foot of the written complaint made by the complainant on 4 April 2003. The reason given for that at the hearing was that after the meeting between the complainant and Mr. H on 18 April 2003, it had been Mr. H’s intention to conduct an investigation, however, in the interim, it received notification that a complaint had been forwarded to the Tribunal and he considered that there was therefore no point in proceeding and in his view, he was not afforded an opportunity to conclude his investigation.
7.16 I note that Ms. D held a supervisory role with operational responsibility although she did not have responsibility for personnel issues and was more senior to the complainant. The respondent had an obligation to ensure that conduct of such nature as occurred did not happen in the workplace by putting in place appropriate policies, staff training, and effective human resource management. It also had a responsibility to investigate allegations fairly and thoroughly and if the allegations proved to be substantiated, to clearly re-affirm that such conduct was unacceptable including if necessary, taking disciplinary measures against the persons involved, taking appropriate measures to prevent recurrence and reassuring the complainant that his rights would be protected in the future. I consider that the manner in which the investigation was concluded was totally unsatisfactory. Although the respondent carried out an informal investigation on foot of the complainant’s verbal complaint and established that Ms. D had made an unacceptable statement towards the complainant, the employer did not at any stage:
(i) clearly indicate any findings to the complainant in respect of his allegations;
(ii) clearly indicate to Ms. D that such behaviour was unlawful and was regarded by it as serious misconduct;
(iii) acknowledge to the complainant that unacceptable comments had been made to him, or provide him with an apology either on its own behalf or from Ms. D;
(iv) take any apparent steps to ensure that conduct of that nature did not recur.
Vicarious liability
7.17 Section 15(1) of the Employment Equality Act, 1998 provides:
‘Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done without the employer’s knowledge or approval.’
In the present case, there is no doubt but that the statement made by Ms. D was carried out in the course of her employment and notwithstanding that the statement may have been made without the employer’s knowledge or approval, the respondent is vicariously liable for the actions of its employee.
Section 32(6) Defence
7.18 In accordance with section 32(6), it is a defence for an employer to show that he took such steps as are reasonably practicable to prevent the harassment taking place. Section 32(6) provides that:
“If, as a result of any act or conduct of E another person (“F”) who is C’s employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against C, it shall be a defence for F to prove that F took such steps as are reasonably practicable-
(b) in a case where subsection (1) applies ……. to prevent E from harassing C (or any class of persons of whom C is one).”
At the time of the harassment, the respondent did not have any policies in place in relation to the prevention of harassment on the race ground or any other grounds. It submitted that it is in the process of formalising a number of policies and procedures including an Equality Policy for production in the form of a new Company Handbook. As the respondent had not taken any steps to prevent harassment at the relevant time, it cannot avail of the section 32(6) defence.
Victimisation
7.19 Section 74(2) of the Act provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith –
(a) sought redress under this enactment or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
7.20 The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that he was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith sought redress under the Employment Equality Act, 1998. The complainant referred a complainant to the Equality Tribunal on 15 April 2003. The complainant claims that he was victimised in that Mr H ignores him since the meeting on 18 April 2003, that he was given a written warning for leaving work two minutes early and as a result of the meeting with his supervisor regarding the warning, he was detained for an extra 14 minutes after his work day ended. The complainant submitted that after raising his detention with his supervisor subsequently, he was paid for the minutes. The complainant further submits that his efforts to appeal the written warning have been ignored by management. The respondent disputes that the complainant was victimised. It submits that he has not been singled out or ignored since he chose to exercise his right to lodge a claim with the Tribunal. It submits that a first stage warning for departing the workplace before finishing time was issued to the complainant in accordance with the company’s Disciplinary procedure. It further submitted that the fact that the complainant received payment two weeks later for the time he was delayed is evidence of the company’s good faith in the matter. The respondent submits that it has no evidence of a request by the complainant for a meeting to discuss the warning which had been given to him and rejects his contention that such a request was made.
7.21 In relation to the first allegation of victimisation, the complainant has not adduced evidence, in the form of witness evidence or otherwise, to substantiate his claim that he was and continues to be ignored, in particular, by Mr. H. I find that he has not therefore, established a prima facie case of discrimination in relation to this allegation. However, I must point out that my finding on this matter should not be interpreted as a finding that the complainant is not being ignored.
7.22 The respondent made available a copy of its Disciplinary Policy which states:
“Where individuals have drifted from established standards of performance or behaviour a disciplinary procedure can help the individual to “get back on the rails”. The shortcoming will be pointed out to the individual, and advice as to what needs to be done to correct it will be given. In many instances this counselling is all that is needed. Where the desired improvement has not taken place, further steps may be necessary. These can include verbal warning, written warning and suspension from work.”
The Policy provides for a four step process when it “is found necessary to implement the disciplinary procedure.” The process consists of
– a first written warning which includes pointing out the deficiency, what must be done to attain the accepted standard and the consequences of continuing below standard,
– a second written warning where the individual does not improve to the required standard within a reasonable time or in the meantime has been given a verbal warning for a different deficiency,
– a final written warning where the person fails to reach the required standard within a reasonable time;
– suspension or dismissal.
7.23 In relation to the second allegation of victimisation, the complainant submitted that he left the workplace two minutes early on 17 February 2004 i.e. at 4.28pm. The complainant’s immediate supervisor stated that the complainant left the workplace two to three minutes early and that the bell signifying the end of the workday had not rung by the time he left. In the context of the respondent’s Disciplinary Policy which refers to pointing out the shortcoming to the individual and giving advice as to what needs to be done to correct the behaviour in the initial stages, that on the day in question there was in fact no need to clock out as the complainant had just received a new clock card, that the times shown on watches/ clocks may vary by a small amount and that the complainant only left work two minutes early, it is questionable as to why such a severe penalty was imposed. Indeed, the penalty imposed on the complainant may be contrasted with the lesser sanction imposed on Ms. D as submitted by the respondent (although I am not convinced that one was imposed) for harassing the complainant on the race ground. The respondent submitted that Ms. D was given a verbal warning and that the sanction imposed was recorded electronically on the company’s personnel system. It is therefore, the case, that a written warning was not issued for what seems to me to be the much more serious offence of unlawful conduct contrary to the Employment Equality Act, 1998. Additionally, a witness on behalf of the complainant gave evidence at the hearing that he was five minutes late back from lunch and was told by Mr. H that he should ensure he was back on time in future. Mr. H agreed that he stated to the witness that if he had to go out at lunch time, he should ensure he was back on time. I note that the respondent’s Disciplinary Policy states “Copies of written warnings will be filed in the individuals personnel file. In no case will disciplinary action be taken until that person has had an opportunity to state her/his position.” In this case, the complainant was called to a meeting room by his supervisor and given the written warning (which had been prepared before entering the room) without the opportunity to state his position. No explanation was provided by the respondent for imposing such a sanction on the complainant and why it was not dealt with in accordance with its Disciplinary Policy by pointing out the shortcoming to the complainant and giving advice as to what needed to be done to correct it is unclear. I find, on the balance of probability, that the complainant has established a prima facie case of victimisation in respect of the written warning he received which the respondent has failed to rebut.
7.24 The Disciplinary Policy provides that a person may appeal any of the disciplinary steps through the Grievance Procedure. It states that an appeal must be made within five working days if it is to be considered by the Company. The ‘Problem Solving and Grievance Procedure’ provides that if an employee has a problem or grievance, the problem or grievance should be addressed in the first instance with the employee’s immediate Supervisor. If the employee is dissatisfied with the Supervisor’s decision, the Supervisor is obliged at the employees request to arrange a meeting with the Department Manager to discuss the problem. If after that meeting, the employee is still dissatisfied with the decision of her/his Department Manager, the Department Manager at the request of the employee will refer the matter to her/his Senior Manager. The Policy further specifies that if all of these steps fail to provide a solution to the problem, the employee may request a meeting with the Managing Director to discuss the problem. The Policy does not provide for the submission of grievances in writing or specifically provide for or refer to an appeal of a disciplinary measure given to an employee.
7.25 The complainant provided a copy of the written warning which was given to him on 18 February 2004. In relation to the third allegation of victimisation, the complainant submits that on 26 February 2004 after a weeks sick leave, he requested a meeting to discuss and appeal the written warning which had been given to him. He submits that at a meeting with Mr. H on that date, Mr. H told him that he did not want to get into the issue of the warning and that he wanted to clear up one point and make it clear that the company did not have it in for him. The complainant submitted that he again tried to raise the issue of the warning and the reasons it was given to him and was told by Mr. H that it was a separate issue and they could talk about it later. The respondent submitted that it had no record or evidence of a request by the complainant for a meeting to discuss the warning and submitted that “No appeal against the first stage warning was lodged in the context of the company’s Disciplinary Procedure.” It submitted that the meeting on 26 February 2004 was requested by Mr. H (as opposed to the complainant) to clarify two comments which were made by the complainant to his supervisor on 18 February 2004 (being the date the complainant received the written warning) that (i) the company was out to get him and that (ii) Mr H had been avoiding him. At the hearing, Mr. H confirmed that the complainant tried to raise the issue of the written warning but he did not entertain his attempts as the mechanism was to appeal to company’s manager, however, he did not submit that he tried to explain that to the complainant.
7.26 Firstly, I am unclear why the company refers in its written submission to no appeal being lodged which suggests a written appeal as there is no mention of such an appeal in the Grievance Policy. At the hearing, it was confirmed that an appeal of a written warning would take place verbally. Indeed, as clarified by Mr. H at the hearing, the complainant tried to raise the issue of the written warning at the meeting on 26 February 2004. At the hearing, the complainant stated that there was a certain inadequacy in the information provided by the company to employees regarding policies, procedures and time limits. The complainant submitted that he was distressed at having received a written warning and was on sick leave the following week. Indeed, the complainant’s distress in recalling events was clearly visible at the hearing. The complainant’s supervisor confirmed that the day after the complainant received the written warning, he became upset in work. I consider, on balance, that the complainant requested a meeting to discuss and appeal the written warning and that request was ignored by the company. No explanation was provided by the company as to why a meeting was not held with the complainant nor was the time limit issue raised and I find, on the balance of probability, that the complainant has established a prima facie case of victimisation in respect of the appeal of the written warning which the respondent has failed to rebut.
7.27 In making my decision in this case, I have had regard to the Code of Practice on Sexual Harassment and Harassment at Work (S.I. No. 78 of 2002) which may be taken into account by me in accordance with section 56(4) of the Employment Equality Act, 1998. The Code of Practice provides:
“Employers should adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment.”
It further provides in relation to the Definition section of a policy that:
“(d) the policy should emphasise that it is up to the employee to decide what behaviour is unwelcome irrespective of the attitude of others to the matter;
(e) the policy should state that employees who make a complaint or who give evidence in proceedings etc. will not be victimised.”
The Code of Practices also provides that a complaints procedure in a policy should provide for informal and formal methods of resolving problems.
7.28 In considering redress for victimisation, I have considered that victimisation is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation.
8. DECISION
8.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Act, 1998 contrary to section 8 and 32 of the Act in relation to his conditions of employment.
8.2 On the basis of the foregoing, I also find that the respondent victimised the complainant in terms of section 74 of the Employment Equality Act, 1998.
8.3 In accordance with section 82 of the Act, I hereby order that the respondent:
(i) treat the complainant in the same manner as other employees who have not referred a complaint to the Tribunal;
(ii) provide the complainant with a written apology apologising for the harassment on the race ground and for its victimisation of him;
(iii) pay to the complainant the sum of €5,000.00 compensation in respect of the act of discrimination (This award relates to compensation for harassment, distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(iv) pay to the complainant the sum of €10,000.00 compensation in respect of the acts of victimisation (This award relates to compensation for harassment, distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(v) draft an Equality Policy which takes account of the provisions of the Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 (S.I No. 78 of 2002) and effectively communicate the document to all relevant persons including management;
(vi) provide an equality training seminar within three months for all staff including senior management to brief them on the provisions of the Employment Equality Acts 1998 -2004.”
O’S v Eastern Regional Ambulance Service
DEC-E/2014/012
“This dispute involves a claim by Mr. David O’S (“the Complainant”) that he was (i) discriminated against by the Eastern Regional Ambulance Service (“the Respondent”) on grounds of disability in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts in relation to his conditions of employment, (ii) harassed by the Respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts and contrary to section 14A of those Acts and (iii) victimised by the Respondent in terms of section 74(2) of the Acts. The Complainant also alleges that the Respondent failed to provide him with reasonable accommodation in terms of section 16(3) of the Acts. The Respondent rejects the Complainant’s assertions in their entirety.
Background
The Complainant commenced employment with the Respondent as an Emergency Medical Technician (“EMT”) in September 1999. He states that he was diagnosed with Depression in June, 2003 and his condition necessitated a number of absences from work thereafter. He adds that in July, 2004 he agreed an action plan with the Respondent to address his absences record, an element of which was a provision restricting the Complainant in the amount of overtime shifts he could work each week. The Complainant adds that as part of this action plan he was regularly reviewed by the Responden
t’s Occupational Health Department and after several meetings and assessments with Management and medical staff the review process formally concluded in September, 2006 and he was restored to full overtime duties. The Complainant states that his employment was uneventful until November, 2009 when he was referred to the Respondent’s Occupational Health Department by Mr. D, the Respondent’s Assistant Chief Ambulance Officer (at that time) and he was again withdrawn from the overtime roster. He was restored to the roster in December, 2009 and it is submitted on his behalf that the Respondent’s actions amount to less favourable treatment of him on grounds of disability contrary to the Acts.
The Complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on the 27th of April, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned – Vivian Jackson, Equality Officer – for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on the 13th of July, 2012 – the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on the 27th of September, 2012. At the Hearing Counsel for the Complainant advised that he intended to raise alleged incidents of unlawful treatment which occurred after the first complaint was referred to the Tribunal – in particular events which occurred on the 26th of October, 2010 and resulted in the Complainant being placed on suspension, with pay, until July, 2011 – when he returned to full duties. The Equality Officer brought the Determinations of the Labour Court in Hurley v Cork VEC[1] and A School v A Worker[2] to the parties’ attention and sought comments on the relevance of same to the instant case. Counsel for the Complainant subsequently agreed that the Labour Court Determinations precluded his client from seeking redress in respect of alleged incidents which post-dated the date of referral of the complaint but noted that the Tribunal could take evidence on the issue and afford them appropriate probative value in terms of the alleged incidents encompassed by the original complaint. Counsel advised that the incidents detailed in the Complainant’s original submission which pre-date November, 2009 were not being pursued as part of the complaint but were included by way of background to the alleged November, 2009 incident. The Respondent’s representative concurred with Counsel’s analysis of the Labour Court Determinations but submitted that she was not in a position to address the issues which were alleged to have occurred from October, 2010 onward and sought an adjournment in those circumstances. Counsel for the Complainant did not object to the application and stated that he would take his client’s instructions on the question of whether or not he wished to refer a new complaint to the Tribunal in respect of the alleged incidents of discrimination from October, 2010 onwards. In the circumstances the Hearing was adjourned.
The Complainant’s solicitors referred a second complaint on behalf of its client under Employment Equality Acts, 1998-2011 to the Equality Tribunal on the 1st of October, 2012. This complaint made similar allegations to the first one referred (except the allegation that the Respondent failed to provide him with reasonable accommodation) and indicated that the first occurrence of alleged unlawful treatment encompassed by the complaint was the 26th of October, 2010 and was ongoing. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned – Vivian Jackson, Equality Officer – for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on the 2nd of October, 2012 – the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on both complaints took place on the 25th of January, 2013. At this Hearing Counsel for the Complainant withdrew the allegations of harassment, victimisation and a failure to provide reasonable accommodation referred under the first complaint. He also withdrew the allegation of victimisation referred under the second complaint. The Respondent’s representative stated, notwithstanding that the Complainant’s allegations were rejected; her client was arguing that the second complaint was out of time. A second day of Hearing took place on the 6th of March, 2013. At the outset of this Hearing Counsel for the Complainant withdrew the harassment element of his client’s second complaint. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded in early August, 2013.
Conclusions of The Equality Officer
The issues for decision by me are (i) whether or not the Complainant’s second complaint was referred within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2011 and is therefore properly before this Tribunal for investigation; (ii) is so, whether or not the Respondent discriminated against the Complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2011 and contrary to section 8 of those Acts; and (iii) whether or not the Respondent discriminated against the Complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in respect of events between November – December, 2009. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
The first issue I must examine is whether or not the Complainant’s second complaint was referred to this Tribunal within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2011. That section provides that a complaint must be referred to this Tribunal no later than “6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”. The section therefore encompasses a situation where there is a series of separate acts which are sufficiently connected so as to form a continuum. Section 77(6A) provides-
“For the purposes of this section-
(a) discrimination or victimisation occurs-
(i) if the act constituting it extends over a period, at the end of the period.”.
In Hurley v Cork VEC[3] the Labour Court stated that this provision encompassed a situation where an employer maintains and keeps in force a discriminatory rule, regime, practice or principle which has a clear and adverse effect on the Complainant and gave useful guidance on what might comprise such a situation.
In the instant case there are two separate but interlinked issues advanced by the Complainant. The first is his suspension from duty immediately following the incident on the 26th of October, 2010 and the second is the alleged application (by the Respondent) of its Disciplinary Process against him in respect of the incident. It is common case that the Respondent (Mr. D) decided to suspend or “stand down” the Complainant from duty on 26 October, 2010. This suspension continued until August, 2011 when, following a series of referrals to the Respondent’s Occupational Health Department, which also involved consultations with an external Consultant Psychiatrist, Mr. D permitted the Complainant to resume duty. It is immaterial whether the treatment of the Complainant amounts to a single act of discrimination (Mr. D’s decision to suspend him on 26 October, 2010) with continuing consequences or a chain of separate acts of discrimination as I find that any unlawful treatment of the Complainant ceased on or around the 18th of August, 2011 when he was returned to duty. The Complainant referred his complaint to the Tribunal on the 1st of October, 2012. This is beyond the six month timelimit prescribed at section 77(5)(a) of the Acts and it is also beyond the maximum extended period of twelve months prescribed at section 77(5)(b) of the Acts and consequently, I find that this element of the complaint is out of time and is not properly before the Tribunal for investigation.
The second element of the Complainant’s claim is that the Respondent invoked its Disciplinary Process against him in respect of the incident on 26 October, 2010. He adds that he was informed so by staff of the Respondent (Mr. B and Mr. M) and operated on the belief that this was the position until the Hearing in this Tribunal on the 27th of September, 2012 when the Respondent advised that this was not the case. The Respondent rejects this assertion and states that the Complainant was never the subject of its Disciplinary Process. I have evaluated the evidence adduced on this matter (both oral and written) by the parties and I am satisfied, on balance, that it was reasonable for the Complainant to hold the belief he did during his period of suspension. The Respondent’s actions at the time, particularly in respect of its failure to respond to the correspondence issued on behalf of the Complainant between December, 2010 and July, 2011, in my view falls well below best practice as detailed in the LRC Code of Practice on Grievance and Disciplinary Procedures[4]. It was open to the Respondent at any time during this period to clarify the position to the Complainant yet inexplicably, it failed to do so. Had it responded at the time it might well have saved itself (and the Complainant) the time and expense of the current proceedings before this Tribunal.
The Complainant contends that the actions of the Respondent amount to ongoing discrimination of him until the 27th of September, 2012 and consequently, his complaint is referred within the statutory timelimits. However, I cannot accept that proposition. Once the Complainant returned to duty in August, 2011 he never pursued the matter further. This is in stark contrast to his actions during the period when he was “stood down”. During this period he actively pursued the Respondent (personally, through his trade union and through his legal representative) seeking clarification of the status of any investigation. Moreover, the Respondent did not at any stage subsequent to the Complainant’s return to duty, behave in a way that would lead the Complainant to conclude that he was subject to the Disciplinary Process. Whilst he had received copies of witness statements to the incident on the 26th of October, 2010 (on the 25th of November, 2010) and given the opportunity to reply to same (which he did), the Respondent never wrote to him requesting his attendance at a formal disciplinary hearing (as required by section 3 of its Disciplinary Code in operation at the time). In the course of the Hearing (with this Tribunal) the Complainant confirmed that he was aware of the Respondent’s Disciplinary Code. Consequently, I am satisfied that he was aware (at all times subsequent to his return to work), or at least should reasonably have been aware, that the Disciplinary Process (in terms of a Grade IV investigation) had not been invoked against him, even in the absence of any confirmation from the Respondent. Again, the actions (or lack of action) by the Respondent in bringing a conclusion to the confusion is inexplicable. On an evaluation of the evidence adduced as part of my investigation, it appears to me that there was little communication between Senior Management at local level and HR, who are the custodians of the Disciplinary Process and assist local Senior Management with its implementation. It is also clear that once the Complainant had resumed duty and was no longer pressing for answers, the Respondent did nothing to conclude whatever process had commenced with the Complainant’s suspension in October, 2010. In light of my comments above and in all of the circumstances I find that the actions of the Respondent (however inadequate they may have been in terms of best practice) do not amount to a continuous act, or a chain of connected acts, which could amount to discrimination of the Complainant until the 27th of September, 2012. I am satisfied that any possible unlawful treatment of the Complainant expired on his return to work in or around the 18th of August, 2011. The Complainant referred his complaint to the Tribunal on the 1st of October, 2012. This is beyond the six month time limit prescribed at section 77(5)(a) of the Acts and it is also beyond the maximum extended period of twelve months prescribed at section 77(5)(b) of the Acts. Moreover, I am satisfied that the actions of the Respondent do not amount to circumstances encompassed by section 77(6A) of the Acts (as detailed by the Labour Court in Hurley v Cork VEC[5]. Consequently, I find that this element of the complaint is out of time and is not properly before the Tribunal for investigation. In light of my comments in this and the preceding two paragraphs I find that the Complainant’s second complaint was referred to this Tribunal outside of the time limits as prescribed in the relevant provisions of section 77 of the Employment Equality Acts, 1998-2011 and I have no jurisdiction to deal any further with the matter.
I shall now look at the Complainant’s first complaint – that he was discriminated against by the Complainant on grounds of disability in respect of the events between the 5th of November, 2009 and the end of December of that year. Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the grounds specified. It is well settled in a line of decisions from both this Tribunal and the Labour Court that the type or range of facts which may be relied upon by a Complainant can vary from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that discrimination has occurred. The language used indicates that where the primary facts alleged are proved it remains for this Tribunal to decide if the inference or presumption contended can be properly drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn from a fact, or range of facts, which have been proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Therefore it is not necessary for him to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts[6]. Where such a prima facie case is established it falls to the Respondent to prove the absence of discrimination. This requires the Respondent to demonstrate a complete dissonance between the protected characteristic (in this case disability) and the impugned acts alleged to constitute discrimination. In this regard the Tribunal should expect cogent evidence showing that the Complainant’s disability was nothing more than a trivial influence on the impugned treatment of him, since the facts necessary to prove a non-discriminatory explanation would normally be in the possession of the Respondent.
It is common case that the Complainant was subject to an agreed action plan to address his absence from work due to illness from July, 2006 until September, 2006. It is also common case that both Mr. D and Mr. K were involved in that process and were aware the Complainant suffered from depression. In the course of the Hearing the Complainant accepted that he had been absent on nine separate occasions between the 29th of October, 2008 and the 3rd of October, 2009 and therefore the absence at issue in these proceedings (from 2nd of November, 2009-5th of November, 2009) was his tenth absence in just over twelve months. I note that the first four absences are explained by a “right ankle fracture” and are all certified by a medical practitioner. The next four are all uncertified, three comprise single day absences and no reason for the absence is provided. The last of these absences occurred on the 31st of July, 2009. The ninth absence is also uncertified (for two days) and it is explained by “reaction to a flu injection”. I note from Mr. D’s letter of the 6th of November, 2009 referring the Complainant to the Occupational Health Department states that “in recent months [the Complainant] has been absent on numerous occasions, both certified and uncertified, which can be seen in the table below”. The letter goes on to say “I also wish to note that following discussions with [Mr. K] [the Complainant] informed him that he is currently on medication for depression and has been referred to a specialist.”. In the penultimate paragraph Mr. D states “Given his high level of absenteeism and his recent discussions with [Mr. K], we feel an urgent appointment is necessary to establish the extent and seriousness of any problems [the Complainant] has and to ensure he is receiving the necessary treatment so that he can continue to carry out his contracted duties.”.
The Respondent submits that its actions were premised on a duty of care to the Complainant (as a member of staff) and to the public at large, whom it serves. It further submits that against that backdrop it was perfectly reasonable for it to refer the Complainant to its Occupational Health Department and that its actions were consistent with its “Managing Attendance Policy”. On careful examination of the evidence I cannot fully accept this proposition. The purpose of the Attendance Policy is “to identify scope for improvement in attendance levels and to find workable solutions to illness absence issues where they exist”. One of the key features of the Policy is “the principle of early intervention: early and successful addressing of issues with employees which might reduce employees having problems with attendance.”. The Policy also sets out the roles of the various participants (Employees, Line Managers, Human Resources and the Occupational Health Department) and requires Line Managers to hold a return-to-work discussion with an employee on resumption of duty following illness. Consequently, Mr. K was entitled to conduct the meeting with the Complainant on the 5th of November, 2009. The Policy further provides that an employee can be referred to the Occupational Health Department for review for frequent absence due to illness. The term “frequent” is defined as “an absence from work by reason of illness on three occasions over a rolling three month period. The Complainant was absent on five separate occasions between the 15th of May, 2009 – 2nd of October, 2009. Three of these absences were uncertified and there was no reason given for the absence. If the Respondent was vigorously applying its Attendance Policy then it should have intervened at latest 31st of July, 2009 when the fourth absence occurred and referred the Complainant to the Occupational Health Department. However, it did not do so at the time. It did however, refer the Complainant to the Occupational Health Department on 6th of November, 2009, following his absence of a few days, which ended on 5th of November, 2009. Consequently, I am satisfied that it was the Complainant’s absence on between 2nd of November, 2009 – 5th of November, 2009 which triggered the Respondent’s actions in this regard.
There is conflict between the parties as to whether or not the Complainant informed the Respondent that he was suffering from depression in early November, 2009. I note that the “Return to Duty” form completed in respect of the Complainant’s absence from 2 November, 2009-5 November, 2009 states “chest pain” as the reason for the absence. This is consistent with the evidence of the Complainant and Mr. C. However, the form also includes the following comment “following discussion with David he informed me that he is on medication for depression and is been referred to a Dr. in B/mont”. The Complainant states that he signed this form under protest, but no such annotation is made on the form – and given the Complainant’s comment that the form was the subject of industrial relations negotiations at the time, one might have expected such an annotation. In addition, it is common case that the Respondent actively pursued the Complainant for full details of the medication he was on at the time. In my view, this would not have been an issue had the Respondent not formed some opinion that there was a possible issue with the Complainant’s mental health at that time. Furthermore, both Mr. K and Mr. D had been involved in the previous occasion (2004-2006) when the Complainant had mental health issues. In the circumstances I am satisfied the Respondent formed the view that the Complainant’s absence was connected with his depression – this is clear from Mr. D’s letter of 6 November, 2009 to Dr. E referring the Complainant to the Occupational Health Department.
The question arises therefore as to whether or not the actions of the Respondent amount to discrimination of the Complainant on grounds of disability. Section 6 of the Acts provides that discrimination shall be taken to occur “where a person is treated less favourably than another person, is, has or would be treated in a comparable situation on any of the grounds specified … in this Act referred to as the ‘discriminatory grounds.’”. The Complainant asserts that a colleague (Mr. X) was treated differently to him in similar circumstances but was unable to furnish the Tribunal with any details of this difference in treatment. The Respondent submits that it was entitled to refer the Complainant to its Occupational Health Department for assessment in circumstances where it had genuine concerns about his medical fitness to carry out his contracted duties. Having carefully considered the totality of the evidence adduced by the parties on this matter, I find that the actions of the Respondent are reasonable in the circumstances. In reaching this conclusion I am particularly cognisant of the nature of the work that the Complainant performs and the stressful environment in which he is likely to operate on a daily basis. In addition, I am satisfied, on balance, that the Respondent would not have treated another employee engaged as an EMT, who had a different disability to the Complainant and with whom it had similar concerns as regards his/her capability to perform the duties attached to the position, any differently to the Complainant. Accordingly, I find that the Respondent did not discriminate against the Complainant on grounds of disability contrary to the Acts when it referred him to its Occupational Health Department for assessment in November, 2009.
However, the Respondent went further than referring the Complainant to its Occupational Health Department. The Complainant was contemporaneously removed from the structured overtime roster. The Respondent states that this was not imposed on the Complainant; rather it was agreed with him at the meeting with Mr. D and Mr. K on 6th of November, 2009. It adds (Mr. D) that he informed the Complainant he (Mr. D) would prefer if the Complainant did not do any structured overtime (with immediate effect) and the Complainant was happy to agree to this. Mr. D states that he had formed this view following discussions with Dr. E (who suggested that the Complainant should avoid overtime in the immediate term) and the fact that on the previous occasion the Complainant had felt stressed and anxious (2004-2006) his condition had been exacerbated by “excessive overtime”. The Complainant rejects the assertion he agreed to his removal from the overtime roster and states that he was informed by Dr. E that he never made such a suggestion to Mr. D. The Respondent furnished no documentary evidence that Dr. E had made the suggestion attributed to him and he did not attend the Hearing to give evidence in the matter. In the course of the Hearing Mr. D stated in evidence that his file record of the meeting on 6 November, 2009, which was opened to the Tribunal, was composed on the day. This file record makes no reference to any discussion between him and Dr. E. This is a significant omission given the Complainant’s history. I note the Complainant states that Mr. D made reference (at the meeting) to seeking advice from Dr. E but that he refused to disclose the nature of that advice. I further note the statement made on behalf of the Respondent to the Tribunal in a letter dated 15 July, 2013 “that it was entirely reasonable for it to take the precautionary decision to temporarily withdraw his structured overtime” at the time. Having carefully considered the evidence adduced by the parties on this matter I find, on balance, that the Respondent unilaterally removed the Complainant from the structured overtime roster and that this decision was taken by Mr. D without the benefit of any medical advice from Dr. E or any other person in its Occupational Health Department.
The Respondent also submits its decision in this regard was informed by the knowledge that on the previous occasion the Complainant had felt stressed and anxious (2004-2006) his condition had been exacerbated by “excessive overtime”. The Respondent is incorrect in this. What Dr. E’s report (dated 15 February, 2005) opined was that “extensive overtime” had created some difficulty for him. These are distinct situations. “Excessive” means exceeding the normal or permitted limits, “extensive” means widespread or to a large degree. In my view overtime can be extensive, in that it can be regular and occur over a long period, without it being excessive. Moreover, the Respondent’s actions in 2005 was not to remove the Complainant from the overtime roster entirely but to permit him perform two overtime shifts per week with certain conditions attached. The Respondent could have adopted a similar approach in November, 2009 but instead it immediately removed the Complainant from the roster. Having carefully considered this matter I am satisfied, on balance, that the Respondent would not have another employee engaged as an EMT, who had no disability or a different disability to the Complainant in the same manner. Consequently, I find that the Respondent treated the Complainant less favourably on grounds of disability contrary to the Acts and this element of his complaint succeeds.
Decision of the Equality Officer
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that –
(i) the Respondent discriminated against the Complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in respect of his conditions of employment when it removed him from the overtime roster in November, 2009 and
(ii) the Complainant’s second complaint (which was referred to this Tribunal on 1 October, 2012) was referred to this Tribunal outside of the time limits as prescribed in the relevant provisions of section 77 of the Employment Equality Acts, 1998-2011 and I have no jurisdiction to deal with the matter.
In accordance with my powers under section 82(1) of the Employment Equality Acts, 1998-2011
I order that the Respondent pay the Complainant the sum of €2,800 by way of loss of earnings in respect of the structured overtime he was denied between 5th of November, 2009 and 22nd of December, 2009 as a result of the discriminatory treatment of him. As this award constitutes remuneration it is subject to PAYE/ PRSI at the appropriate rates. I further order that the Respondent pay the Complainant the sum of €12,000 by way of compensation for the distress suffered by him as a result of the discrimination. This amount is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.”
A Company v A Worker
“BACKGROUND:
2.1 The worker was employed as an apprentice graphic reproducer with the Company from August, 1990 until his employment terminated in March, 1991. The worker alleges that during his employment he was sexually harassed by a Company Director (name supplied to the Court). The instances alleged included crude language, and offensive comments and actions of a sexual nature. The worker claims that these discriminatory working conditions were both demeaning and distressing to him and ultimately resulted in his dismissal.
2. 2. The Company denies the allegations and claims that the worker was dismissed for his poor working performance.
EVIDENCE:
3. 1. The worker gave evidence that throughout his employment with the Company he was subjected to crude language and offensive comments of a sexual nature. Initially these incidences seemed to be part of the general working environment and though the worker felt uncomfortable he was willing to accept them as such.
However, the worker claims that from October , 1990 things changed in that the behaviour and comments of the Director became specifically directed towards him. He stated that this behaviour greatly embarrassed him and that the Director was aware of this, often even laughing at his embarrassment.
The worker gave details of specific incidents which occurred between October, 1990 and March, 1991. These incidents included being asked by the Director to go to the chemist for condoms or menstrual pads. He was also subjected to a ‘sex survey’ by the Director in which she asked him intimate and embarrassing questions (details supplied to the Court). All these incidents created a hostile and discriminatory working environment for the worker.
2. The worker agreed that he met his FAS Training Adviser on two occasions and that he never complained to him about the alleged sexual harassment. The worker stated that he was afraid to complain for fear of losing his job. He felt that anything he said would be reported back to the Company.
……….
“Recommendation:
The Court, having heard the submissions of the parties and considered the evidence of witnesses for the complainant and the respondents, has concluded that the termination of employment contravened section 3(4) of the Employment Equality Act, 1977.
The respondents had argued that the dismissal was based in part on work performance and the Court considered the evidence related to this argument.
The Court accepts that the complainant’s performance was poor. The incidents outlined together with the evidence of fellow workers leads to the conclusion that the employment would probably have ended within a short time.
It is a fact that the complainant was sent home as a form of suspension, that he failed to pass on a letter to his parents expressing the Employers concern about his work, and that he was counselled by the F.A.S. representative.
However, whilst the respondent’s Managing Director submitted that he had cause to dismiss the complainant and had, considered dismissal, he did not actually set upon that course of action until other events overtook the situation.
In evidence, the Managing Director stated that prior to the allegation surrounding this case being made on the 28th March, 1991, he had expected the complainant to be at work on the following day. The Court concludes, therefore, that the dismissal – at the time it occurred – was not performance related.
The Court is satisfied that the dismissal of the complainant arose because of the allegations he made through his parents to the Managing Director on the 28th March, 1991. In considering the allegations the Court has noted that the complainant was introverted by nature, quiet, and had difficulty in expressing himself to authority, be it parents or management. He was unable to settle into a working atmosphere which was deliberately open in style. The management fostered a working pattern which was interactive and in which lines of authority were deliberately softened. A certain amount of coarseness and leg pulling was tolerated.
It is clear that the complainant was not able to cope with jokes against himself and was highly embarrassed in such situations. Unfortunately this signalled him out for more attention.
The Court is satisfied that the third-named respondent participated in these jokes and, probably without realising the consequences of her actions, subjected the complainant to situations which discriminated against him.
In particular, the “sex survey” and threats to send him on errands for condoms would point up the fact of discrimination. No other employee was exposed to the joke “test” or threatened in the same way.
Having regard to all the circumstances of the case, the Court is satisfied that the complaint is well-founded and that the complainant was discriminated against in contravention of Section 3(4) of the Employment Equality Act, 1977 and that this discrimination led to his parents’ intervention and his consequent dismissal from his employment.
The Court will therefore make an order directing the respondent company to pay to the complainant the sum of £1,000 compensation.”
A Company v A Worker ED/02/58
SUBJECT:
“1. Alleged Unfair Dismissal under Section77 of The Employment Equality Act, 1998.
BACKGROUND:
2. The dispute concerns a worker who commenced employment on the 20th May, 2002. She was dismissed on the 26th July, 2002. The complainant contends that she was subjected to acts of sexual harassment in the course of her employment with the respondent. She claims to have made complaints in that regard to the appropriate management personnel and shortly thereafter her employment was terminated. The complainant contends that her dismissal resulted wholly or mainly from having made those complaints and amounted to discrimination and /or victimisation, in contravention of the Employment Equality Act, 1998 (The Act). On the 14th October, 2002, the worker referred a complaint to the Labour Court under Section77 (2) of the Act. A Court hearing was held on the 28th January, 2003.
Issues for Determination by the Court:
The respondent submitted that in order to succeed the complainant must prove that the acts of harassment did in fact take place, and that this alleged conduct was in fact the reason for her dismissal. In their written submission to the Court they denied that these acts occurred or that they amounted to sexual harassment. They further contended that the complainant never reported the alleged incidents of sexual harassment to the respondent.
The Court was informed that the respondents intended to call a number of witnesses to rebut the complainant’s allegations of sexual harassment.
………….
The Court is of the view that evidence in relation to the veracity of the complaints of sexual harassment are not relevant to the issues arising in the present case. Those issues are:
1. Did the complainant complain in good faith that she had been subjected to acts of sexual harassment?
2. Was the farm manager (who took the decision to dismiss) aware of those complaints at the time he decided to terminate the complainant’s employment?
3. Was the complainant’s dismissal wholly or mainly attributable to the existence of such complaints?
The Court cannot accept that the claimant must establish as an objective fact that she was subjected to sexual harassment before she can avail of Section 77(2) of the Act. Experience has shown that employees who make complaints of discrimination generally, and of sexual harassment in particular, can be vulnerable to victimisation. Hence, the protection afforded by section 77(2) must be seen as a vital component in ensuring the effectiveness of both the Act and the Equal Treatment Directive on which its provisions regarding gender discrimination are based. The purpose of this provision is clearly to allow those who consider themselves wronged to bring forward complaints at any appropriate level without fear of penalisation for so doing. However, the usefullness of that protection would be significantly impaired if it were dependent upon the complaints being upheld in a subsequent investigation.
The Court is firmly of the view that employees are entitled to bring forward complaints of sexual harassment, which they consider to be legitimate, and are entitled to protection from penalisation regardless of the outcome of such complaints.
Counsel for the respondent further submitted that she should be permitted to adduce evidence in relation to the veracity of the complaints of sexual harassment, which could go to the bona fides of the complainant. The Court did not accept that submission for two reasons. Firstly, if it was to be contended that malice intent on the part of the complainant justified her dismissal, only those who were involved in making the decision to terminate her employment could give that evidence. It is noted, however, that no such contention is contained in the written submissions presented by the respondent. Secondly, evidence in rebuttal of the complaint’s complaints, even if accepted by the Court in its entirety, would not in itself establish that she acted mala fide.
Accordingly, the Court held that only evidence in relation the making of complaints by the complainant and the extent, if any, to which the existence of such complaints contributed to her dismissal were relevant to the facts at issue in this case. It held that evidence which related solely to the veracity of any such complaints was not relevant and should not be admitted.
The Material Facts:
The material facts, as admitted or as found by the Court, can be briefly summarised as follows.
The complainant commenced employment with the respondent on the 20th of May 2002. She was employed as a stud hand. The complainant had previously been self-employed in the bloodstock industry. She had extensive experience in working with horses, although it appears that she did not previously encounter thoroughbreds of the quality stocked by the respondent. At the commencement of her employment the complainant was issued with a copy of the respondent’s staff handbook which explained, inter alia:
The respondent’s equal opportunities policy.
The respondent’s policy for dealing with harassment in the workplace
The respondent’s policy for dealing with sexual harassment
The procedures for reporting grievances.
The complainant read and understood this handbook.
The complainant was employed on a probationary period of 11 months.
The complainant alleges that she was subjected to sexual harassment in the course of her employment about which she complained to her immediate superiors. The Court makes no finding as to whether this harassment did or did not occur.
The Court is not satisfied that all of the alleged incidents were reported or complained of by the complainant in any formal sense. It is clear, however, that the complainant reported one alleged incident to her supervisor. The farm manager was subsequently made aware of this complaint in early July 2002 in the course of a telephone conversation with the supervisor. The supervisor informed the farm manager in emphatic terms that he did not believe that there was any substance in this allegation. The farm manager was of a similar view based on his knowledge and previous experience of the employee against whom the allegation was made.
Nonetheless the farm manager asked the supervisor to investigate the allegations further by speaking with two other employees who were present when the incident allegedly occurred.
The farm manager heard nothing further about the allegation and presumed that the matter had been resolved. On the 25th July 2002 the complainant telephoned the office manager to advise her that she would be unable to attend work due to illness. During the course of this conversation the complainant told the office manager of the incident already reported by the supervisor to the farm manager. She also referred to another incident of alleged harassment.
The complainant told the Court that she found it easier to speak to another woman in relation to these matters. The office manager informed the claimant that she should process these complaints through the formal grievance procedures. Later that day the officer manager informed the farm manager of the conversation that she had with the complainant and of her allegations of sexual harassment.
The farm manager had been concerned at the competence of the complainant to carry out the job for which she was employed. He said he had formed the view sometime earlier that her employment should be terminated but had decided not to take any action at that time. While the Court accepts that the farm manager did have concerns in relation to the complainant’s performance, this was never discussed with the complainant nor was it brought to her attention.
Having received the report from the office manager, the farm manager met with the complainant’s supervisor to discuss her continued employment. It was then decided that she should be dismissed. The farm manager fairly and frankly accepted in his evidence to the Court that the complaints of sexual harassment, which had been repeated to the office manager, were taken into account in deciding to terminate the claimants employment. The farm manager told the Court that the second incident which the complainant had reported to the office manager (which the farm manager believed was totally lacking in credibility) was the final straw.
Statutory Provisions:
Section 77(2) of the Acts provides as follows:
(2). If a person claims to have been dismissed
(a) in circumstances amounting to discrimination by another in contravention of this act or
(b) in circumstances amounting to victimisation,
then subject to Subsection (3), a claim for redress for the dismissal may be brought before the Labour Court and shall not be brought to the Director.
Section 74(2) of the Act defines victimisation as follows: (2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
In the Court’s view a person who is dismissed wholly of mainly for having reporting in good faith incidents which they believe to constitute sexual harassment, or for having made complaints in that behalf, or for otherwise seeking to prevent its occurrence or reoccurrence, is victimised within the meaning of paragraphs (b) and (d) of that definition.
Conclusions of the Court:
Whilst the complainant did not pursue her complaint of sexual harassment in strict conformity with the respondents grievance procedure, there is no doubt that she did bring at least some of her complaints to her superiors attention. Equally, there is no doubt that the farm manager became aware of at least two of these complaints. It should, however, be noted that the Code of Practice referred to below provides that these should be informal as well as formal methods of making complaints.
Whilst the farm manager did suggest in evidence that he regarded the complaints as vexatious, no basis was put forward for this view beyond his belief that the conduct complained of could not have occurred.
On this point the Court has noted the provisions of the Employment Equality Act (Code of Practice) (Harassment) Order 2002 (S.I. No. 78 of 2002) made pursuant to section 56(1) of the Act, as amended by paragraph (g) of the Schedule to the Equal Status Act 2000. At section 5(4) the code provides, in relation to the complaints procedure which employers should follow, as follows:
(4) Victimisation.
The Complaints procedure should make it clear that an employee will not be victimised or subjected to sanction for making a complaint in good faith, or for giving evidence in proceedings, or by giving notice of intention to do so.
The procedure should make clear that in the course of investigating the complaints the employer will make no assumptions about the guilt of the alleged harasser.
In its written submission to the Court the respondent did not put the complainants bona fides at issue. Nor they did they suggest any malicious or vexatious reason which may have motivated the complainant in making complaints. Further, the Code of Practice indicates that the employer should make no assumptions about the guilt of the alleged harasser. By parity of reasoning, the employer should not make assumptions as to the bona fides of the complaint itself or that of the complainant.
There was no evidence that the complainant was accused of making vexatious complaints through the company’s disciplinary procedure or otherwise. Moreover, there was no meaningful investigation or enquiry into the substance of these complaints before the decision to terminate the complainant’s employment was taken. Rather, they were dismissed out of hand by the supervisor and the farm manager.
The complainant was not asked to expand on the complaints nor was she given any opportunity to address the respondents stated belief that the events complained of could not have occurred. In these circumstances the Court cannot see any reasonable basis on which the respondent could have concluded that the complainant was not acting in good faith.
The Court has no doubt that were it not for the fact that the farm manager became aware on the 25th July 2002 that the complainant was persisting in making complaints of sexual harassment her employment would not have been terminated when it was. Hence the Court is satisfied that the complainant’s dismissal resulted wholly or mainly from the making of those complaints and amounts to victimisation within the meaning of Section 74(2) of the Act.
DETERMINATION:
The Court finds the complainant was dismissed in circumstances amounting to victimisation within the meaning of Section 74(2)(b) and (d) of the Act.
The Court determines that the appropriate redress is an award of compensation. In measuring the quantum of compensation the Court has had regard to all of the circumstances of the case including the financial loss suffered by the complainant, the distress which she suffered in consequence of the dismissal together with the requirement to make an award which is effective, proportionate to the wrong suffered and dissuasive.
The Court awards compensation in the amount of €15,000”
A Company v A Worker EED883
“Subject:
Claim alleging sexual discrimination under Sections 2(a), 3(1) and 3(4) of the Employment Equality Act, 1977.
Recommendation:
ORDER:
6. The Court wishes to draw attention to the fact that in response to a request from the employer side in this dispute all the oral evidence was taken on oath. Notwithstanding that, the Court was presented with directly contradictory evidence which gave considerable difficulty and concern to the Court in arriving at its conclusions.
The Court was asked on behalf of the claimant to find:
(a) that her dismissal was directly due to sexual harassment and was therefore discriminatory in terms of Section 2(a) of the Act of 1977 and in breach of Sections 3(1) and 3(4) of the Act,
(b) that the claimant was sexually harassed at work and that this harassment was sex discrimination within the meaning of the Act, (c) to award suitable compensation, and (d) to direct this employer and all employers that steps should be taken to prevent sexual harassment from occurring in the workplace.
(A) No evidence was produced by the claimant to show that the employer was aware of the alleged sexual harassment or that this was the reason the claimant was dismissed. The claimant admitted that she did not at any stage inform her employer or any other member of the staff of the alleged incidents. Whilst the Court understands the vulnerability of any employee who is in a situation such as that alleged by the claimant the Court nevertheless would have to be satisfied by the evidence presented that the employer’s reason for dismissing the claimant was the knowledge that the alleged incidents of harassment took place.
(B) Considerable detail of alleged incidents of sexual harassment were presented to the Court. These spread over the total period of the claimant’s employment culminating on the day of the 28th September, 1987. All the incidents were categorically denied. In the face of completely contradictory evidence, which on balance did not support the allegations made, the Court does not find the complainant’s claim sustainable.
(C) In view of its findings at A and B the matter of compensation does not arise.
(D) With regard to the further points raised by the EEA, the Court reiterates its previous finding in Order No 2 of 1985, in which it ruled that sexual harassment at work constituted unlawful discrimination on grounds of sex under the Employment Equality Act, 1977 and that “freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect”. The Court considers that employers have a duty to ensure their employees enjoy such working conditions.”
A Company v A Worker EED883
SUBJECT:
1. Claim alleging sexual discrimination under Sections 2(a), 3(1)
and 3(4) of the Employment Equality Act, 1977.
BACKGROUND:
2. The worker concerned was employed in the Company from the 2nd
December, 1986, until the 2nd October, 1987.
The worker claims that during the period of her employment she was subjected to continuous sexual harassment by the husband of the Company’s managing director who is engaged by the Company to act as an independent contractor and that her dismissal was directly attributable to this sexual harassment. These allegations are vehemently denied by the Company which claims that no sexual harassment ever took place and that her dismissal was attributable to the Company’s financial and economic circumstances.
3. On the 12th February, 1988, the Employment Equality Agency, on behalf of the worker, referred her case to the Labour Court under Section 27 of the Employment Equality Act, 1977.
……
Respondent’s Case
2. During the worker’s employment the Company employed five people, a production manager, an office clerk and three machinists. The factory consists of one upstairs room off which there is an office and toilet. The room consists of approximately five machines which are one behind the other, a workbench which is beside the machines and a cutting table which is beside the bench. On the other side of the machines there is a small packing and storage area. The office looks out on to the entire room. Because of the size of the floor area people can see and hear everything that happens within the workplace. Nobody in the workplace ever saw or heard anything said or done by the respondent to the claimant which would constitute sexual harassment (details supplied to the Court).
3. The individual against whom the allegations were made is an independent contractor who has been engaged by the Company to travel the 32 counties seeking to locate new accounts for the Company. He is on the road up to four days per week and would spend only about five hours a week in the Company’s premises. This would be for the sole purpose of reviewing orders, making advance calls to customers and carrying out some occasional maintenance on the machines when requested to do so by the production manager or the machinists themselves. He therefore has extremely limited contact with the staff and any contact he does have with them is as a group and not individually.
4. He was never at any time alone with the claimant. His only contact with her would have arisen if she requested him to come and look at her machine. In the event of such a situation arising he was in full view of and could be overheard by all the staff.
5. In her allegations the claimant makes reference to an alleged incident which took place in or around the 28th September, 1987. The Court can be provided with evidence that the person concerned was not in the Company’s premises at any time on that date and was not in fact in the premises at any time for the remainder of the week.
6. The allegations made are of such an extremely serious and disturbing nature that the Company can only assume that they have been brought about through her intense bitterness and spite arising out of the termination of her employment and her need to get her own back at the Company. This must surely be evidenced by the fact that the claimant is only able to provide the Court with one vague date on which this alleged sexual harassment occurred and even this date and the time preceding it and following it can be clearly accounted for by the respondent.
7. The Company finds it strange that at no time did the claimant mention or discuss any of the allegations to her employer or her fellow colleagues, one of whom she confided in regularly about work and problems she was having at home. Furthermore, if this alleged harassment was so adversely affecting her environment, why did she not leave the Company?
8. At the time of recruiting the claimant, the Company was in a serious loss making situation and had incurred a lot of bad debts. The situation took on a very optimistic outlook when in July/August, 1987, the Company secured large orders from a customer and for a short period the Company was keeping its head above water. However, in September, the customer went into receivership which represented a loss in excess of £6,000 to the Company. This, for a Company with a turnover of only £11,000 per month, had very serious knock on effects. On foot of this development, the Company had to take immediate action in an effort to meet its existing costs. This involved a number of cutbacks, one of which regrettably involved reducing the general workforce. The Company felt that in a more rationalised situation it would have to have the most efficient and committed employees to turn the operation around once more and, bearing this in mind, the criteria adopted by the Company for selection had particular regard to attitude, performance, flexibility, quality of work and attendance. On the basis of this procedure, the claimant was selected for redundancy.
………………….
RECOMMENDATION:
ORDER:
6. The Court wishes to draw attention to the fact that in response to a request from the employer side in this dispute all the oral evidence was taken on oath. Notwithstanding that, the Court was presented with directly contradictory evidence which gave considerable difficulty and concern to the Court in arriving at its conclusions.
The Court was asked on behalf of the claimant to find:
(a) that her dismissal was directly due to sexual harassment and was therefore discriminatory in terms of Section 2(a) of the Act of 1977 and in breach of Sections 3(1) and 3(4) of the Act, (b) that the claimant was sexually harassed at work and that this harassment was sex discrimination within the meaning of the Act,(c) to award suitable compensation, and (d) to direct this employer and all employers that steps should be taken to prevent sexual harassment from occurring in the workplace.
(A) No evidence was produced by the claimant to show that the employer was aware of the alleged sexual harassment or that this was the reason the claimant was dismissed. The claimant admitted that she did not at any stage inform her employer or any other member of the staff of the alleged incidents. Whilst the Court understands the vulnerability of any employee who is in a situation such as that alleged by the claimant the Court nevertheless would have to be satisfied by the evidence presented that the employer’s reason for dismissing the claimant was the knowledge that the alleged incidents of harassment took place.
(B) Considerable detail of alleged incidents of sexual harassment were presented to the Court. These spread over the total period of the claimant’s employment culminating on the day of the 28th September, 1987. All the incidents were categorically denied. In the face of completely contradictory evidence, which on balance did not support the allegations made, the Court does not find the complainant’s claim sustainable.
(C) In view of its findings at A and B the matter of compensation does not arise.
(D) With regard to the further points raised by the EEA, the Court reiterates its previous finding in Order No 2 of 1985, in which it ruled that sexual harassment at work constituted unlawful discrimination on grounds of sex under the Employment Equality Act, 1977 and that “freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect”. The Court considers that employers have a duty to ensure their employees enjoy such working conditions.”
CL v CRM
DEC-E2004-027
“1. DISPUTE
1.1 The dispute concerns a claim by the Communications Workers Union, on behalf of Ms. L, that she was subjected to sexual harassment and harassment on the grounds of religion in the course of her employment with the respondent organisation (CRM) in terms of Sections 6, 23 and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
2. BACKGROUND
2.1 The complainant commenced employment as a junior sales adviser on 13th August, 2001. She alleges that she was subjected to sexual harassment by another member of staff (Mr. A) and that she was subjected to harassment by the Sales Manager on the grounds of religion on a regular basis. The respondent denies the allegations. Consequently the complainant referred a complaint to the Director of Equality Investigations on 10th January, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 14th February, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing took place on 11th March, 2004. Further additional information was received from the respondent on 29th March, 2004.
………………….
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to sexual harassment and harassment on the grounds of religion. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
5.2 The complainant commenced employment with the respondent in August, 2001. In June, 2002 she had reason, in the course of her employment, to get a lift from Mr. A. The complainant alleges that, during that journey, she was subjected to sexual harassment by Mr. A. According to the complainant she made a complaint to her manager (the Sales Manager) and this allegation was reported to the General Manager. The complainant also states that she received a number of text messages from Mr. A, the last of which was received the day after the alleged incident in the car. It is the complainant’s contention that, not long after she became pregnant, the respondent let her go in September, 2002. According to the respondent the complainant was performing very poorly and it was decided to make her position redundant. The respondent notes that between July and September, 2002 the complainant was absent on sick leave for 25 of the 47 working days in that period.
5.3 In relation to the allegation of sexual harassment I must first consider if the complainant has established on the balance of probabilities that she was sexually harassed. If I find that she has established that she was sexually harassed I must consider whether the complainant’s employer (i.e. the respondent) is vicariously liable. If I deem the respondent to be vicariously liable then I must consider, as a defence, whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace and whether the respondent dealt adequately with the complaint of sexual harassment.
5.4 At the hearing of this claim the complainant alleged that, while in a car with Mr. A in the course of their work:
(a) Mr. A grabbed her leg
(b) Mr. A touched her breast and
(c) Mr. A grabbed her hand and pressed it against his private parts.
According to the complainant Mr. A sent her a sexually explicit text message the following day and she showed this message to the Sales Manager. The respondent denies these allegations. The Sales Manager confirmed that the complainant reported the alleged incident to him but the only thing she told him was that Mr. A had put his hand on her knee. In a diary entry made by the Sales Manager and which he submitted following the hearing I note that he stated in writing that the complainant “has alleged that Mr. A grabbed her by the leg”. The Sales Manager denied that the complainant showed him a sexual explicit text message which she received from Mr. A the following day. At the hearing the Sales Manager confirmed that he, in the company of the complainant, reported the alleged incident to the General Manager. In evidence the General Manager said that the complainant stated that Mr. A had put his hand on her knee and that he had tried to put her hand down his overalls. The General Manager and the Sales Manager both stated that when the complainant was asked what she wanted the respondent to do she requested a guarantee that she would not have to travel with Mr. A again and she was given this guarantee. Both the General Manager and the Sales Manager denied that they had told the complainant that they would post up a list of rules alerting employees to sexual harassment.
5.5 In her submission the complainant stated that Mr. A suggested that he “pull over for a quickie”; he placed his hand on her leg; squeezed it and held it for some time and he put his hand on her breast and said “give me a go”. At the hearing the complainant said that Mr. A grabbed her leg, touched her breast and pressed his hand against his private parts. I note that the allegations made by the complainant in her written submission are not fully consistent with those made at the hearing.
5.6 There is also a difference between what the General Manager stated in his statement and what he said at the hearing of this claim. In his statement he stated that the complainant had alleged that, to his recollection, Mr. A had grabbed her hand. In evidence at the hearing the General Manager stated that Mr. A had put his hand on the complainant’s knee and that he had tried to put her hand down his overalls. I am satisfied that the evidence given by the General Manager at the hearing of this claim reflects, in all probability, what the complainant actually alleged. If the complainant had not made the allegations the General Manager would not have outlined the two allegations as he did at the hearing.
5.7 At the hearing of this claim the complainant produced a number of sexually explicit text messages which she had received from Mr. A. I am satisfied that these messages could reasonably have been regarded as sexually offensive, humiliating or intimidating to the complainant or indeed to anyone who would have received them. Four of these messages were sent prior to the alleged incident of sexual harassment and one was sent the day after the alleged incident. It was accepted by Mr. A that these messages had been sent from his mobile phone. There was a suggestion by the Administrative Officer, at the hearing, that Mr. A was not allowed to have his phone with him in his work area and that it was always in the office. It was on this basis that she was suggesting that someone else could have used the mobile phone to text the messages to the complainant. According to this witness some of these messages were circulating around the office and were not directed specifically at the complainant. I note that there was no evidence to support this contention. At the hearing Mr. A confirmed to me that he did have his mobile phone with him in his work area and that it was only in the office when it needed to be charged. Mr. A’s mobile phone is his own responsibility and when he left it in the office he could have left it turned off. Mr. A has alleged that the complainant sent him text messages of a sexual nature but he was unable to provide any evidence to substantiate this allegation. In terms of the type of messages the complainant is alleged to have sent to Mr. A I am satisfied that they were not sexually explicit. Rather they were invitations to meet for a drink or for lunch.
5.8 There is a lot of conflict in the evidence before me in this matter. Sexual harassment is defined in Section 23(3) of the Employment Equality Act, 1998. Where A and B represent two persons of opposite sex Section 23(3) provides that:
“For the purposes of this Act
(a) any act of physical intimacy by B towards A,
(b) any request by B for sexual favours from A, or
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A”.
I am satisfied that an act occurred while the complainant was in the car with Mr. A and that this act was unwelcome to the complainant resulting in her making a complaint about it to management in the respondent organisation. I am also satisfied that the complainant received a number of sexually explicit text messages from Mr. A’s mobile phone and one of these was received after the alleged act and after the complaint to the respondent.
5.9 In statements submitted by witnesses for the respondent and in their direct evidence at the hearing of this claim I note that they all, without exception, contend that the complainant regularly instigated sexual banter in the respondent organisation. Mr. B in his written statement outlined one specific incident where he felt sexually harassed by the complainant and another witness, in her statement, indicated that she was present when this incident occurred. I note that the witness (Mr. B) has now left the respondent organisation but felt so strongly about this claim that he attended the hearing on behalf of the respondent to give direct evidence in support of his written statement. The complainant has denied these allegations. In the Labour Court Determination in the case of A Company v A Worker1 the Labour Court noted that the company, while refuting allegations of sexual harassment, relied on a number of counter allegations put together by employees who had been accused by the claimant, alleging that she was a willing participant in sexual banter and conversation in the workplace. This Labour Court Determination can be distinguished from this claim inasmuch as the complainant has not made any allegations of sexual harassment against any, but one, of the witnesses for the respondent. Furthermore the nature of the harassment was not merely sexual banter but included an unwelcome act of a sexual nature. Consequently I find that there is compelling evidence that the complainant herself instigated some of the incidences in the respondent organisation.
5.10 Having established that the complainant was subjected to sexual harassment by Mr. A in relation to the incident in the car and in relation to the text messages I note that Section 15(1) of the Employment Equality Act, 1998 provides that the respondent is vicariously liable where Mr. A’s actions were carried out in the course of his employment although, not necessarily, to the knowledge or approval of the respondent.
5.11 Section 15(3) of the Employment Equality Act, 1998 provides the following defence for a respondent:
“In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee –
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description”.
According to the respondent the complainant was given a commitment that she would not have to travel with Mr. A in the future and I am satisfied that the complainant did not find herself travelling alone with Mr. A thereafter. The respondent says that the allegations were not put to Mr. A because the complainant had pleaded with management not to call Mr. A into a meeting. I note that the complainant stated, at the hearing of this claim, that she had no objection to these allegations being put to Mr. A but not in her presence. I am satisfied that the complainant’s position at the hearing was not made clear to the respondent at the time. The respondent denies that it gave the complainant a commitment that it would put up a set of rules in relation to sexual harassment in the organisation. After the alleged incident the complainant received a further text message from Mr. A which was sexually explicit. Had there been a sexual harassment policy in place at the time one would expect that, in accordance with that policy, the respondent would have undertaken an investigation, informed Mr. A of the allegations and given him an opportunity to respond to them. I note that the respondent did not have a sexual harassment policy in place at the time setting out steps that were reasonably practicable to prevent any of these incidents occurring and the respondent did not take any steps after the complainant made her complaint. The respondent has stated that a sexual harassment policy has since been put in place.
5.12 The complainant has alleged that she was subjected to harassment on the grounds of religion by the Sales Manager. She alleges that he made discriminatory comments to her regularly on an on-going basis. This allegation is denied by the Sales Manager and by all those who made statements on behalf of the respondent. I am, therefore, satisfied that there is no evidence to support this allegation.
6. DECISION
6.1 In view of the foregoing I find that the CRM did subject the complainant to sexual harassment in terms of Sections 6 and 23 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. I further find that the respondent failed to provide the complainant with a safe working environment free from sexual harassment.
6.2 I also find that there is no evidence to support the complainant’s allegation of harassment on the grounds of religion in terms of Sections 6 and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
6.3 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the respondent –
– to pay the complainant the sum of €1,000 by way of compensation for the stress suffered as a result of the sexual harassment;
– to provide training for all staff on the provisions of the Employment Equality Act, 1998.”
A Female Teacher v Board of Management of a Secondary School
DEC-E2012-103
“1. Dispute
This dispute involves a claim by a Female Teacher (hereinafter “the Complainant”) that she
(i) was discriminated against by the Board of Management of a Secondary School (hereinafter “the Respondent”) in relation to conditions of employment on grounds of gender, in terms of section 6 (2) of the Employment Equality Acts, 1998 – 2008 (hereinafter “the Acts”) and contrary to section 8 of the Acts by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the Respondent afforded to other persons (“the comparators”) where the employment circumstances of the Complainant and the comparators were not materially different;
(ii) was sexually harassed at her place of work by pupils of the Respondent, which constitutes discrimination by the Respondent in relation to the Complainant’s conditions of employment under section 14A (1) (a) (iii) of the Acts; and
(iii) was victimised by the Respondent (within the meaning of section 74 (2) of the Acts) by being dismissed and otherwise adversely treated by them as a reaction to complaints of sexual harassment made by the Complainant to the Respondent.
2. Background
The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11 November 2008. A written submission was received from the Complainant on 6 July 2009. A written submission was received from the Respondent on 1 December 2009. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 9 May 2011, 9 June 2011, 21 June 2011 and 23 September 2011. Both parties attended the hearing.
3. School disciplinary procedure
An explanation of the school disciplinary process is necessary to understand the evidence of both Complainant and Respondent. The School Guidelines and Code of Behaviour states that:-
“A detailed and graduated series of school actions/responses will apply to deal with breaches of school guidelines. This will be in paralleled by pastoral guidance and a high level of home-school communication from the earliest stage.
Breach 1. Details of the incident will be accurately recorded in the class discipline book and signed by the reporting staff member [i.e. 1st booking]. At the end of the same school-day, the head of discipline for the relevant class will dispatch a letter [Litir 1A] to the parent(s) guardian(s) notifying them of the discipline breach and the student is also interviewed by the head of discipline.
Breach 2. When/if a 2nd booking is incurred, a second litir [Litir 2A] is sent to parent(s) guardian(s). the facility of a meeting with the relevant head of discipline is extended to the parent(s)/guardian(s) though not insisted upon.
Breach 3. A third letter [Litir 3A] is posted to parent(s)/guardian(s) notifying them of the 3rd booking. The student is interviewed by the head of discipline and placed on a Monitoring Card for a period of 5 full school-days. Parent(s)/guardians(s) may also be spoken with via telephone or at a personal meeting.
The Monitoring Card system is central to the administration of monitoring/promotion of behaviour/improvement and must be afforded the highest level of respect by any involved pupil.
“A student on a Monitoring Card is obliged to
a) keep the card neat and tidy and on her/his person for the duration.
b) afford it the privacy of a private document between the student, parent(s)/guardian(s) and the school.
c) place it on the teacher’s desk at the start of each class and invite the teacher to mark and initial the appropriate slot at the end of class.
d) ensure that the card is signed each night by parent(s)/guardians and that the card is presented to the head of discipline the following morning before 11.45am for countersigning.
e) the classroom teacher is obliged to award a mark according to the extent the student complies with the three criteria set out below:
o Student is attentive and participates fully in class
o Courteous behaviour shown towards subject teacher and fellow students
o Uniform dress code and class materials/books presented as per standard required by school code of conduct.
The possible marks are:
A for all three criteria
B for two of three
C for one of three
D for poor response to all three
E if there is an unsatisfactory response to all three
An E grade at any time will necessitate the student’s removal from class and may result in suspension.
Parent(s)/guardian(s) are obliged to sign the card each night and to support the school’s behaviour modification/improvement efforts by continually monitoring the grades and performance.
“Short-circuit offence. Foirm Spesialta ‘A’ (FSA).
If a student is involved in behaviour which is unacceptable to any teacher/staff member (especially any form of disrespect) instant action may be taken. Another pupil (not the student involved) may be sent to the staff-room to ask another teacher to stand in while the subject teacher or teacher on supervision duty completes a FSA and brings the student to the relevant Head of Discipline/Deputy Principal who will investigate the incident getting clear statements from the parties involved and other witnesses. The Principal is involved only when all investigations are complete as she/he must impartially review the evidence before taking any action. All work in class must stop as an exemplary protest against such behaviour. The relevant Head of discipline will consult with the Principal as to the length of term of suspension which may apply.”
…………………
4. Summary of the Complainant’s case
The Complainant is a secondary school teacher of Irish and English. She was employed by the Respondent under a contract of indefinite duration dated 26 July 2007 to teach Irish and English to Leaving Cert (Higher) standard, Religious Studies to Leaving Cert standard, and Social Political and Health Education and Civic, Social and Political Education to 3rd year standard. The Complainant gave up a permanent whole time position in another school to take up the position in the Respondent’s school for family reasons. While there was no explicit provision in the written contract of employment for a probationary period it is agreed by both parties that such a condition was understood and accepted. The Complainant commenced employment with the Respondent in September 2007.
The Complainant alleges excessive supervision by the Principal; damage to her car and discrimination in not being allowed park it safely; lack of support from the school management; sexual harassment by a number of male pupils; failure by the Respondent to investigate her complaints of sexual harassment; negative assessment of her work as a consequence of her making sexual harassment allegations; and having her employment contract terminated as a reaction to her making such allegations.
5. Summary of Respondent’s case.
The Complainant made unsubstantiated allegations against a number of pupils. All alleged disciplinary claims made by the Complainant were fully investigated by the Respondent but no corroborating evidence of any type could be established. The Respondents took the view that justice and fairness was best served by disregarding the allegations as no corroborating evidence was uncovered despite the thoroughness of the investigations which took place.
The Board of Management on 5 June 2008 decided not to offer the Complainant a contract of employment for the following school year after hearing a report from the Principal. The Principal’s report to the Board stated that
“having probated [the Complainant’s] performance and assessed her overall suitability in this school with its ethos and traditions, I find that she has not satisfactorily completed her probation as such. I am reporting to the Board of Management that as Principal of the school I am not satisfied that [the Complainant] has satisfactorily completed the probationary period.”
The Respondent argues that the decision not to renew the Complainant’s contract was not a reaction to her claims of sexual harassment but because of her failure to adhere to disciplinary procedures, thereby exposing the school to threat of litigation and reputational damage.
…………………….
6.9 Evidence of other teachers
In the course of the hearing, three teachers who were colleagues of the Complainant gave evidence. None was aware of the allegations of sexual harassment made by the Complainant at the time. None was aware of reputational damage to the school at the time. One teacher had herself been a victim of sexual harassment by a pupil (not one of those against who the Complainant made allegations) and stated that she was satisfied with the response of school management to her complaint and the sanction imposed on the pupil perpetrator. One teacher gave evidence that the Complainant appeared flustered in school after Christmas 2007. She asked his advice on handling troublesome pupils. He said that some pupils had complained to him that the Complainant couldn’t control the class. The pupils were worried about their exam prospects as the Complainant’s class tended to degenerate into anarchy. He decided to observe the class unseen by the Complainant and by the pupils with the intention of identifying the troublemakers. He witnessed a well managed, normal, positive class.
…….
9. Conclusions.
I have considered all the evidence both written and oral presented to me.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. In a recent Determination the Labour Court1, whilst examining the circumstances in which the probative burden of proof operates held as follows –
“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
I shall now consider in turn each of the complaints of discrimination made by the Complainant.
9.1 Excessive supervision by Principal.
Even if the allegation was true, it would not constitute discrimination under the Acts because the Complainant has not presented any evidence that the Principal treated her less favourably because she is a woman.
……
9.3 Probation and dismissal
No evidence was presented that the Complainant was dismissed because she was a woman. Further, no evidence was presented that the Complainant was subject to greater scrutiny in probation because she was a woman. It was accepted by the Complainant that her appointment was subject to a probationary period.
For these reasons I conclude that the Complainant was not discriminated against on the gender ground in conditions of employment by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the Respondent afforded to other persons.
10. Claims of sexual harassment.
10.1 The Complainant pointed out that whether conduct constitutes sexual harassment or not depends upon how the conduct was regarded by the recipient rather than upon the motive or intention of the perpetrator. The Complainant’s case is that she reported incidents of what she considered sexual harassment to the school management but management’s response was inadequate. The Complainant argues that the Respondent failed to take such steps as are reasonably practicable to prevent pupils or fellow employees from sexually harassing the Complainant or female teachers generally and therefore the Respondent has no defence in law (under section 14A(2)(a) of the Acts) from a claim of discrimination.
10.2 The Respondent argues that the Complainant has not met the threshold of proving the primary facts on which she relies. The Respondent maintains that it took all such steps as were reasonable to prevent any such harassment, which is denied, occurring and in this regard relies on section 14A (2) and section 15 (3) of the Acts. The Respondent also maintains that it has sufficient policies and guidelines in place to ensure a harassment-free workplace for all its employees.
10.3 The primary facts in this case are that certain pupils called the Complainant certain names and, in one case, a sexually explicit drawing was handed in to her. The Complainant must establish these facts before I can consider the adequacy of the response of management or the robustness of the procedures for dealing with such complaints.
10.4 Apart from the assertions of the Complainant, there is no evidence to support her claims that the words complained of were actually spoken. All the alleged perpetrators denied saying the words. Where the Complainant submitted her claims in time, the school management investigated thoroughly and could not find any eyewitness who heard the alleged perpetrators say the words claimed to have been heard by the Complainant. All the alleged conduct happened in classes with significant numbers of pupils present. I note that the Code of Practice on Sexual Harassment and Harassment at Work2 states that the employer’s complaints procedure should make clear that in the course of investigating the complaints the employer will make no assumptions about the guilt of the alleged harasser. Therefore, in this case the Respondent is correct in concluding that without some independent evidence, from someone else present at the scene, of the fact of the impugned words having been uttered, the Respondent could not proceed to impose a sanction on the alleged perpetrator.
10.5 There was real evidence produced at the hearing in the form of a crude drawing of male sex organs scrawled on a pupil’s copy. It is clear from section 14A (7) (c) of the Acts that unwanted conduct of a sexual nature would include the production, display or circulation of such a drawing. Therefore this incident constitutes a prima facie case of sexual harassment. The question then is: is the Respondent liable or can they avail of the defence in section 14A (2)?
10.6 Section 14A provides:
14A. — (1) For the purposes of this Act, where —
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is —
…
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
…
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —
(a) in a case where subsection (1)(a) applies … to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.
…
(7) (a) In this section —
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
10.7 In the case of the drawing, the school management investigated the case and identified and punished the pupil responsible. An employer is required to take such steps as are reasonably practicable to prevent sexual harassment occurring. As the Labour Court stated in a similar case3-
“…if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent harassment occurring or in reducing the extent of it, he/she will be directly liable for having subjected the employee to the harassment…It also appears to the court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do.”
10.8 In the Labour Court case under reference, although that school responded with severe penalties where offending students could be identified, the imposition of disciplinary sanctions was not in itself sufficient to alleviate or control the developing culture of sexual harassment. The school management in that case failed to fully accept the plain fact known by all the teachers that teachers were being sexually harassed at the school. In the present case, from the evidence given by other teachers at the hearing, while instances of sexual harassment have occurred there is not a culture of sexual harassment in the school and the teachers were satisfied that disciplinary measures are effective. Moreover, in my view the combination of the Respondent’s Dignity in the Workplace policy and the School Guidelines and Code of Behaviour for pupils, when applied correctly, are an effective preventive measure against sexual harassment of staff by students. On that basis I distinguish the present case from the previous case on the facts. The Respondent can avail of the defence of having taken such steps as are reasonably practicable to prevent sexual harassment taking place. I can conclude therefore that the Respondent did not discriminate in relation to the Complainant’s conditions of employment by failing to take such steps as were reasonably practicable to prevent her sexual harassment.
11. Victimisation
Section 74 (2) of the Acts defines victimisation as follows.
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a Complainant,
(c) an employee having represented or otherwise supported a Complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
11.1 The Complainant claims that her employment contract was terminated as a reaction to a complaint of sexual harassment (which is a form of discrimination) made by her to her employer. The decision of the Board of Management was taken after the Principal had withdrawn from the meeting. No one who was present when the decision was taken came to give evidence at the hearing. I must therefore decide what the reasons for the decision were, based on the submissions made to the Board prior to their decision and from the official minutes of the board meeting.
11.2 It is clear to me that the effectiveness of the Complainant as a teacher was not a factor in the board’s decision. No criticism was made of the Complainant’s ability to teach the subjects she was employed to do. The Principal prepared a note for the Baard of Management dated 29 May 2008 on the performance of the Complainant entitled “Matters that caused me serious concern”, as follows:
1. Deficiency in work performance:
Failure to adhere to disciplinary procedures by failing to report alleged breaches of discipline to the head of discipline, the deputy Principal or Principal in a timely fashion.
Example: Alleged breaches of discipline by [Pupil E]. Her failure in immediate communication of behaviours exposes the board in respect of its legislative requirements under health & safety and discrimination legislation.
2. Non co-operation with the probation process.
Example: not agreeing to the Principal visiting her classroom.
From the written and oral evidence of the then Principal, I can discount as irrelevant to the decision to terminate the contract, the allegation of non co-operation with the probation process. It appears from the minutes of the Board of Management meeting that this issue was not discussed.
11.3 The then Principal in oral evidence said that the focus of the discussions before he withdrew from the meeting was primarily on the Complainant’s treatment of Pupil E and of his parents. It is clear to me that if the Complainant had not made allegations of sexual harassment her contract would not have been terminated. No witnesses could recall any other case in the school’s history of a teacher not being kept on after probation. The Respondent seeks to distinguish between the form and substance of the Complainant’s complaints; that it wasn’t for making complaints of sexual harassment as such that she was dismissed but for making such complaints in a manner which caused harm. I note for example that the case of Pupil E that the Complainant made an allegation of sexual harassment directly to the parent of the pupil, 6 months after the alleged event occurred. However I am not convinced by such fine distinctions.
11.4 Some witnesses for the Respondent expressed the opinion that if her allegations had been proved she would not have lost her job, the implication being that it was not for making allegations of sexual harassment but for making false allegations that she was fired. Section 74 (2) not only protects those who make allegations which are upheld; it also protects those who make allegations which are not upheld.
11.5 I conclude that the Complainant’s contract was terminated as a reaction to a complaint or complaints of discrimination (in the form of sexual harassment) made by her to her employer and that she was therefore victimised within the meaning of section 74 (2) of the Acts. The Acts do not provide for any defence by an employer which would justify victimisation. The arguments of the Respondent that they were acting in the best interests of the whole school community cannot be entertained as a defence.
12. Redress
The Complainant sought reinstatement. In my view it would not be in the best interests of all to order reinstatement in view of the obvious breakdown in relations within the school. Instead I award monetary compensation. In determining the level of compensation I take into account the devastating impact the loss of her job has had on the Complainant’s career. From having a full-time job with a contract of indefinite duration on a salary of €50,000 a year, she is earning just €300 a week as a part-time teacher.
13. Decision
In reaching my decision I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the Complainant
1. was not discriminated against by the Respondent in relation to conditions of employment on grounds of gender, in terms of section 6 (2) the Acts and contrary to section 8 of the Acts by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the Respondent afforded to other persons (“the comparators”) where the employment circumstances of the Complainant and the comparators were not materially different;
2. was not sexually harassed at her place of work by pupils of the Respondent, within the meaning of section 14A (1) (a) (iii) of the Acts; and
3. was victimised by the Respondent (within the meaning of section 74 (2) of the Acts) by being dismissed by them as a reaction to complaints of sexual harassment made by the Complainant to the Respondent.
I make an order for compensation for the effects of the act of victimisation in the amount of €75,000 which corresponds to 18 months’ salary. As this does not include any element of remuneration, it is not subject to income tax.”
A Boy’s Secondary School v 2 Female Teachers
AEE/01/9
“SUBJECT:
1. Appeal against Equality Officer’s Recommendation
“2. The workers/claimants claim that they were subjected to sexual harassment by pupils in the College over a protracted period of time. They claim that they complained of the harassment to the Board of Management of the College but that it failed to take any action to protect them. The Board rejects the claim. The workers referred their cases to the Labour Court in April and July, 1998 respectively and the Court referred the cases to the an Equality Officer for investigation. The Equality Officer issued recommendation DEC – E – 2001/05 in January 2001. The full background to the case is contained in it. The Equality Officer found “that the Respondent did not discriminate against the Claimants on the basis of their sex in terms of Section 2(a) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977,” but found “that the Respondent did discriminate against the Claimants in terms of Section 2(d) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977.” The first named worker was awarded £7,000, (euro 8,888.17) and the second named worker £12,000 (euro 15,236.86).
The Board appealed the recommendation to the Labour Court on the 9th of March, 2001, in accordance with Section 21 of the Employment Equality Act, 1977, on the following grounds:
“That the Equality Officer erred in fact and in law in finding that the Appellant discriminated against the respondents in terms of Section 2(d) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977. ” Labour Court hearings took place on the 29th of June, and the 20th and 21st of September, 2001. The following is the Court’s determination:
Introduction:
The first named claimant is a Remedial and Irish Teacher and the second named claimant is a Teacher of Religion. The respondents are the Principal and Board of Management of a boys’ secondary school. It is the claimants’ case that they were discriminated against in terms of Section 2 and contrary to Section 3 of the Employment Equality Act 1977 (The Act) by being subjected to sexual harassment in the course of their employment by students at the respondent’s school. They claim that the respondents are vicariously liable for the harassment. In the alternative they claim that the respondents are directly liable by reason of having failed to prevent the harassment from taking place.
It is further alleged by the claimants that they were penalised by the respondents within the meaning of Section 2(d) of the Act for having sought to prevent the harassment and for having taken the proceedings herein.
The third complainant is the Equality Authority, formally the Employment Equality Agency (the Authority). The Authority referred a complaint pursuant to Section 20(a) of the Act, alleging that discrimination is being generally practised against persons at the school.
The respondents contend that as a matter of law they cannot be vicariously liable for the alleged wrongful acts of the students. They further contend that they acted appropriately in response to any complaints made by the claimants and are not liable for any harassment suffered by them. The respondents also deny that they penalised the claimants in any way.
With regard to the Authority’s complaint, the respondents deny that they allowed discrimination to be practised. They also contend that in the circumstances of this case the Authority does not have standing to bring the complaint.
……..
The Court investigated all of the complaints in the original application de novo.
Complaint of Sexual Harassment.
The claimants contend that various incidents involving sexual harassment of teachers by students occurred from 1996 onwards. The first incident referred to involved a student being particularly abusive to the second named claimant in a sexually inappropriate fashion on a number of occasions in September, 1996. It is also alleged that the student would stand up close to the second named claimant in the corridors. She reported this to the Principal using the standard form for complaints involving serious breaches of discipline (“the blue form”). The School Principal claimed that the complaint recorded on the blue form had no sexual connotations and related only to an incident on 26th September, 1996.
A further serious incident occurred on 29th September, 1996, when a student gave the second named claimant a page containing sexually explicit written material. This incident was investigated and dealt with by the respondent with the result that the student in question was required to transfer to another school.
On 18th December, 1996, there was a further incident. On that occasion, a page containing numerous sexually offensive and explicit references was included in a Religion test answer paper given to the second named claimant. This incident was reported using the blue form. An investigation ensued but the Principal concluded that no disciplinary action should be taken since the offending student could not be positively identified.
A further incident occurred in January, 1997, which appeared less serious, in which a student, alleged to have been involved in the 18th December incident, made a comment to the second named claimant in relation to what had been written in the offending document. This was again reported but no action was taken.
The problem reoccurred in the on 29th September, 1997. On that date, a student made a sexually offensive remark to the second named claimant. She reported this to the Principal using the blue form. This incident was investigated and dealt with by the School Principal and the student in question was required to transfer to another school.
On 8th October, 1997, an incident occurred in whichasticker was attached to the first named claimant’s back and on which an expression of anexplicitsexual nature had been written. This was also reported on the blue form. Again the matter was investigated and a sanction imposed on the student responsible. This consisted of a period of suspension, part of which ran concurrently with the school’s mid term break.
………………….
Duty of an Employer.
Sexual harassment is now generally recognised as constituting an intolerable affront to the dignity of men and woman at work. Since the Determination of this Court inA Garage Proprietor v A Worker EEO2/85it is well settled that freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. It follows that an employer has a concomitant duty to take such steps as are reasonably practicable and necessary to ensure that every employee is provided with a place of work free of sexual harassment. Practical guidance on the steps which should be taken are set out in the European Code of Practice and its Irish counterpart (Measures to Protect the Dignity of Women and Men at Work (Department of Equality and Law Reform September 1994).
These Codes of Practice provide that employers should 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 re-occurrence. The Code of Practice recommends that these measures should, where appropriate, be adopted in consultation with trade union or employee representatives.
The Recommendation, of which the Code of Practice forms part, is a relevant consideration in cases involving sexual harassment. In Grimaldi v Fonds Des Maladies Proffessionelles [1989] ECR 4407, the European Court of Justice pointed out that national Courts are bound to take Recommendations made pursuant to Article 249 of the EC Treaty into consideration in order to decide disputes submitted to them, in particular where they are capable of casting light on the interpretation of other provisions of national or Community law.
Procedures to combat sexual harassment in the workplace are most frequently designed to deal with inappropriate conduct perpetrated by one employee upon another or by a person in authority upon a subordinate. Yet an employee can be subjected to sexual harassment in the course of their employment from sources other than those with whom they are in common employment.
In such cases it is often difficult to define the scope of an employers duty to protect an employee against sexual harassment or to identify the circumstances in which liability will attach to the employer if it occurs. In England the liability of an employer in such cases is now determined by the application of the test formulated by the Employment Appeals Tribunal in the case of Burton and Rhule v DeVere Hotels [1996] IRLR 596.
In this case the EAT, in a case involving racial harassment, considered the meaning of the term “subjecting him to any other detriment” contained in Section 4(2) of the Race Relations Act 1976. The wording of the relevant provisions of the Employment Equality Act are different to that in the British legislation. Nonetheless, the approach adopted by the EAT is relevant in the instant case, since an employer who subjects an employee to the detriment of sexual harassment undoubtedly treats that employee less favourably by reason of his or her sex within the meaning of sections 2 of the 1977,Act.
In Burton the claimants, who were both black, were employed as waitresses by the respondent hotel. They were required to work at a function at which an entertainer was engaged who used crude and racially offensive material. As a result, the claimants suffered racial and sexual harassment by the entertainer and by the guests at the function.
The employer was held directly liable for the harassment suffered because, it was held, the manager on duty had subjected the claimants to racial harassment by failing to immediately remove them from the function hall as soon as the nature of the material being used by the entertainer became known.
In its judgment, the Tribunal firstly pointed out that an employer would readily be held liable where he /she is shown to have actual knowledge that harassment of an employee is taking place and does not act reasonably to prevent it, or where the employer deliberately or recklessly closes his/her eyes to the fact that it is taking place.
Secondly, in applying a lower threshold for liability, the Tribunal took the view that an employer subjects an employee to the detriment of [racial] harassment if he causes or permits harassment serious enough to amount to a detriment to occur in circumstances in which he can control whether it happens or not.
The Tribunal went on to say:
“In order to show that the employer subjected the employee to the detriment of racial abuse or harassment, where the actual abuser or harasser is a third party and not a servant or agent of the employer for whose actions the employer would be vicariously liable, the Tribunal should ask itself as an industrial jury, whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it. If such is the finding, then the employer has subjected the employee to the harassment”.
The principals in Burton were subsequently applied by the EAT in Bennett v Essex County Council EAT/1447/98.
This case involved a teacher of African-Caribbean ethnic origin who was subjected to racial harassment by students in the school in which she was employed. In 1995, the claimant was subjected to harassment by students on a number of occasions over a four month period. She reported this to the school authorities. The school authorities were held not to have taken these complaints as seriously as they should have been. Letters were prepared to the parents of the students concerned but were not subsequently sent. The response of the school was held to have been muddled and uncertain.
It was held that although the respondents were not vicariously liable for the acts of the students at the school, the applicant could succeed if she could show, adopting the principles inBurton and Rhule, that the racial harassment was sufficiently under the control of the respondents that they could, by the application of good educational practice, have prevented the racial harassment or reduced the extent of it. On the facts of the case the employer was liable.
What emerges from these cases is that if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent the harassment from occurring or in reducing the extent of it, he/she will be directly liable for having subjected the employee to the harassment. As the Court understands the principle, liability arises not from the existence of control but from the failure to properly exercise that control so as to protect the employee against harassment. To hold otherwise would be to confuse vicarious liability, which is strict, with direct liability, which depends on a causal link between the harassment complained of and some fault on the part of the employer.
It also appears to the Court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do.
The approach adopted in Burton and Rhule is persuasive and is adopted by the Court, in considering the instant case.
Conclusions
Applying these principles to the facts of the present case, the Court has reached the following conclusions:
Turning first to the series of incidents which occurred in the period between June 1996 and January 1997, the school responded to the complaints made by the second named claimantby disciplining the offending student where they could be identified.In relation to the incident which occurred on 29th September 1996, the student involved was required to transfer to another school.
Notwithstanding the severity of the sanction in this case, it did not appear to have had the deterrent effect which might have been expected since other incidents occurred involving the same teacher. In some of these subsequent incidents the disciplinary process could not be applied because the identity of the offender could not be definitively established. No other action was considered or taken in relation to these incidents.
It should have been apparent at that stage that the use of the imposition of disciplinary sanctions was not in itself sufficient to alleviate or control the developing culture of sexual harassment. In September / October 1997 the problem reoccurred.
It is clear from the correspondence referred to earlier that the Union was concerned that the environment in which its members were required to work had become polluted by sexual harassment. From 15th November, 1997, onwards the School Steward and later the Union official sought to engage with the school authorities in seeking to jointly formulate an appropriate response to this recurring problem.
The respondents appeared to regard the representations made by the Union as an attempt to usurp the role of the Principal with respect to matters of discipline within the school. Rather than agreeing to engage constructively with the teaching staff and their union, the Principal, supported by the Board of Management, appeared to believe that some teachers and the ASTI were involved in some form of campaign directed at undermining his professional standing.
From the submissions, and taking the evidence as a whole, it is clear to the Court that the School Management did not fully accept the plain fact that teachers were being sexually harassed at the school. This is evident from the tone and content of the correspondence passing between the parties at the material time. Of particular significance is the principal’s insistence that the Union Official “put up or shut up”, and his later demand that the complaints of sexual harassment be withdrawn.
After these proceedings had commenced,the school authority did move to take some measures to address the issue of sexual harassment in the school. In May, 1998, the Principal consulted with the Employment Equality Agency and requested the name of a suitable person to address the staff on this topic in the following academic year. Significantly, in writing to the person nominated on 28th July, 1998, the Principal referred to the incident involving the first named claimant and stated that the EEA had investigated the matter and found no cause of complaint. He went on to say that the matter had been referred to the Labour Court and that the Court saw no grounds for complaint. Both statements were incorrect. Notwithstanding the incidents of 1996, in the same letter the Principal stated that prior to October 1997 sexual harassment did not appear to have been a problem at the school.It may have been the perception of the Principal that the incidents which occurred in 1996 did not constitute sexual harassment of the claimants, but the Court cannot accept this contention.
The School Authorities should have recognised what was happening in late 1996 and taken measures to control the situation. They might have sought to involve the parents of students in trying to control their children’s conduct. They should have sought to involve the staff and their trade Union in putting in place a code of practice in line with the European Code and its Irish counterpart and in line with good employment practice. The Court is satisfied as a matter of probability that had such measures been taken they could have at least have prevented the harassment which occurred from September, 1997 onwards, or reduced the extent to which it occurred.
The respondents claim that they took some initiatives to address the complaints of sexual harassment in December, 1997. These involved an attempt to review discipline within the school but that the staff refused to cooperate with these initiatives. Given that at that time the Board of Management and the Principal appeared not to accept that a problem of sexual harassment existed, any such initiatives would have been of little value.
Certain further unilateral efforts were made by the school to devise some policy on sexual harassment, with an involvement by staff, after the present proceedings had commenced. Regrettably, by that stage the relationship between the claimants and the Principal and between the Union Official and the Principal had become so blighted that no real progress was possible. The Court believes that had such an initiative been pursued in response to the initial series of complaints in 1996 or in response to the initial representations by the Union, these complaints might never have come before the Court.
The Court is satisfied that by December1996it should have been clear to the respondents that the measures being taken to prevent the sexual harassment of the teachers were insufficient. By failing to take any additional initiative, the respondent failed to take control of the situation and thus failed in their duty to act reasonably so as to protect the claimants from further incidents of sexual harassment. The Court is, therefore, satisfied that the respondent is liable to the claimants for the harassment to which they were subjected from September, 1997, onward.
Vicarious Liability of the Respondent.
Having found that the respondent is directly liable for the harassment to which the claimants were subjected, it is unnecessary to consider the submissions made by the parties on the applicability of the doctrine of vicarious liability in the present case
Victimisation of the Claimants.
Both claimants complain that they were penalised by the respondent within the meaning of Section 2 (d) of the Act. They rely on a number of incidents which are referred to at paragraph 6.11 of the Equality Officer’s Report.
It is clear from all of the evidence that the respondents were deeply aggrieved by the decision of the claimants to involve their trade union in preference to the internal procedures of the school in addressing their complaints. They were also aggrieved by the decision of the claimants to institute these proceedings. In his submission to the Equality Officer, the Principal states that it is the view of the Board of Management that all internal channels should be fully explored before seeking help from outside.
The Equality Officer took this reference to mean that any referral of a complaint of unequal treatment on grounds of gender by a member of staff to the statutory bodies charged with investigating such complaints, prior to the board being satisfied that all “internal channels” have been fully explored to their satisfaction, met with management’s disapproval. The Court concurs with the Equality Officers interpretation of those comments.
With regard to the particular events relied upon in support of the claim of penalisation, one involved both claimants and a number of others involved the second named claimant. In relation to these incidents, the Equality Officer was satisfied that penalisation of the claimants had occurred. The Court concurs with that conclusion.
Incident Involving Both Claimants.
On the day prior to the first hearing before the Equality Officer, the Principal posted a notice in the school staff room stating as follows:
“An equality officer from the Labour Court will conduct a hearing into the alleged sexual harassment claim on Tuesday 14th December 1999 at 2.30 PM. In [named] Hotel.
Since it would not be possible to provide adequate cover for all the classes, I have decided to close the School at 2.15 PM.
In my view, all members of staff should be afforded the opportunity to attend the hearing, since the decision to authorise the Union to initiate the proceedings against the Board of Management was taken by the teachers at an [named Union] meeting”
The Equality Officer found that the only purpose in posting of this notice prior to the hearing was to expose and embarrass the claimants in the eyes of their colleagues as being the female teachers who were bringing complaints of sexual harassment against the school and to add to their trauma on the day.
Alleged Penalisation of the Second Named Claimant.
The second named claimant’s complaints of penalisation relate to a number of interactions with the Principal in which she claims to have been intimidated or humiliated by him. These incidents are particularised in the Report of the Equality Office. While there is considerable conflict between the parties on the details of these encounters, the Equality Officer found that a number of incidents amounting to penalisation did occur.
Having reviewed the evidence, the Court has come to the same conclusion as the Equality officer in relation to these incidents. The second named claimant was employed by the schoolfrom1995 and appears to have performed her duties satisfactorily. However, following the commencement of these proceedings, she appears to have been singled out for special attention by the Principal and reprimanded on minor matters often within the hearing of her students. In the Court’s view, this attitude toward the second named claimant was in consequence of her having taken these proceedings and does constitute penalisation within the meaning of section 2(d) of the Act.
Complaint Under Section 20(a) of the Act.
It was submitted by the Respondents that The Authoritydoesnot have standing to bring a claim pursuant to Section 20(a) of the Act in circumstances in which particular persons who claim to have been discriminated against have made complaints pursuant to section 19 of the Act. The Court can not accept this submission. Each of the paragraphs of Section 20 provide separate grounds on which a complaint can be referred to the Court. While paragraph (b) is limited to situations in which a particular person alleged to have suffered discrimination has not made a reference under Section 19, no such restriction applies in the case of paragraph (a).
In the instant case, the Court has held that the respondent failed to exercise adequate control over the situation in which two female teachers were being subjected to sexual harassment. It follows that in failing to exercise adequate control the respondent exposed all female teachers to the possibility of discrimination involving sexual harassment. In the Court’s view, this comes within the scope of Section 20(a) of the Act.
The Court finds that the complaint made by the Authority is well founded.
DETERMINATION:
The Court determines that the respondent did discriminate against the first and second named claimants within the meaning of Section 2(a) of the Act by reason of their sex in failing to provide them with a place of work free of sexual harassment. The Court further determines that the first and second named claimants were discriminated against within the meaning of Section 2(d)(i) and (ii) in being penalised for having in good faith made a reference under Section 19 of the Act, and having opposed by lawful means acts which are unlawful under the Act.
The Court is satisfied that the appropriate form of redress is a composite award of compensation to each of the claimants. The Court measures the amount of compensation which is fair and reasonable in all the circumstances at euro 10,000 in the case of the first named claimant, and euro 20,000 in the case of the second named claimant.
The Court determines that the complaint made by the Authority pursuant to Section 20(a) of the Act is well founded but does not propose to make any other award or recommendation pursuant to Section 22 of the Act.”
Ms. A v A Contract Cleaning Company
Glossary
ROLES OF PEOPLE REFERRED TO IN THIS DECISION
Ms. A The Complainant
Mr. B The Alleged Harasser
Mr. C The Shopping Centre Manager
Ms. D The Complainant’s Supervisor
Mr. M The Respondent’s Regional Manager
Mr. L The Alleged Harasser’s Supervisor
Mr. P The Security Company’s Operation’s Manager
1. DISPUTE
This dispute involves a claim by Ms. A that she was discriminated against by her employer on the ground of gender contrary to section 23 of the Employment Equality Act, 1998, when she was sexually harassed by an employee of a security firm in the course of her employment. The complainant also claims that she was penalised in circumstances amounting to victimisation within the meaning of section 74(2) of the Employment Equality Act, 1998 when she complained to her employer about the alleged treatment of her. In accordance with the Equality Tribunal’s normal practice in claims of sexual harassment the names of the parties involved have been withheld.
2. BACKGROUND
2.1 The complainant worked as a cleaner with the respondent and was assigned cleaning duties at a shopping centre in a midland’s town. The alleged harasser (Mr. B) was a security guard at the shopping centre and was employed by a company which was contracted to provide security services there. The complainant alleges that from early in her employment Mr. B made crude and sexually offensive remarks to her and her female colleagues. This behaviour culminated in Mr. B striking her a number of times on the bottom on the evening of 18 December, 2000. The complainant further contends that as a result of reporting the incident to both her and Mr. B’s employers she was penalised in circumstances amounting to victimisation contrary to the Act. The respondent rejects the allegations and notwithstanding this argues that the complainant referred her complaint outside of the six month period required under the Act.
2.2 The Equality Authority referred a complaint on the complainant’s behalf to the Equality Tribunal on 6 July, 2001. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 23 July, 2002, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 11 November, 2003. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. In addition, attempts were made by the parties following the hearing to resolve the matter themselves but these proved unsuccessful. The final piece of correspondence in respect of the case was issued by the Equality Officer on 27 October, 2004.
…….
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the complaint was referred to this Tribunal in accordance with the time limits set out at section 77(5) of the Employment Equality Act, 1998, (ii) whether or not Ms. A was discriminated against by her employer on the ground of gender, in terms of section 6(2)(a) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, in that she was sexually harassed by an employee of a security firm in the course of her employment and (iii) whether or not she was penalised in circumstances amounting to victimisation within the meaning of section 74(2) of the Employment Equality Act, 1998 when she complained to her employer about the alleged treatment of her. In reaching my decision on these issues I have taken into account all of the submission, both oral and written, made to me by the parties.
5.2 I will deal first with the issue of whether or not the complaint was referred in time or not. Section 77(5) of the Act provides:
“…. a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.”.
The complainant’s referral form (which was received in this Tribunal on 6 July, 2001) states that the most recent occurrence of the alleged acts of discrimination was 15 February, 2001, the date on which she attended a disciplinary meeting. It also states that she was victimised for having complained to her employer about the alleged sexual harassment. These assertions were subsequently elaborated upon by the complainant in her submission to the Equality Officer (which was copied to the respondent) and a letter from the Equality Authority to the respondent on 6 July, 2000. It is clear from these documents that the complaint covered a specific incident on 18 December, 2000 and continuing discriminatory treatment and victimisation of the complainant up to and including 15 February, 2001 and the respondent was on notice of same. These issues were subsequently discussed at some length in the course of the hearing of the complaint. I would point out that the format or content of the complaint form is not prescribed by the statute and requests, inter alia, only a brief outline of the complaint. In my view the respondent was on adequate notice of the extent of the allegations and the fact that a specific provision of the Act (Section 23(2)) was not mentioned by the complainant until the hearing has no bearing on whether or not the complaint was out of time. It is accepted by the respondent that Ms. A’s complaint of sexual harassment was mentioned at the meeting of 15 February, 2001 and that during the course of the meeting her immediate supervisor (Ms. D) inferred that the complainant could not be believed. The respondent states that the meeting was arranged to deal with issues around the complainant’s attendance, standard of work and failure to comply with health and safety. Whilst I agree that it can legitimately convene a meeting for such a purpose, it was at the very least inappropriate for the complainant’s allegation of sexual harassment to be raised at the meeting and the fact that it was, in my view supports the complainant’s contention that she was treated differently in the workplace as a consequence of her having made a complaint against Mr. B. Section 23(2) of the Act provides:
“Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A’s employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled —
(a) B sexually harasses A, whether or not in the workplace or in the course of A’s employment, and
(b) A is treated differently in the workplace or otherwise in the course of A’s employment by reason of A’s rejection or acceptance of the sexual harassment or it could reasonably be anticipated that A would be so treated,
then, for the purposes of this Act, the sexual harassment constitutes discrimination by A’s employer, on the gender ground, in relation to A’s conditions of employment.”.
I am satisfied that the complainant’s assertion she was treated differently in the workplace or otherwise in the course of her employment (in terms of section 23(2) of the Act) for having made the complaint is reasonable in the circumstances and that the most recent occurrence of any alleged act of discrimination could be 15 February, 2001. As her complaint was received by this Tribunal on 6 July, 2001 it is within the time limit prescribed by section 77(5) of the Act.
5.3 Before leaving this point I wish to address an issue which was not argued by either party in the course of my investigation but for avoidance of doubt I feel necessary to touch upon. The alleged harasser in this case (Mr. B) was not an employee of the respondent but was employed by a security company which was contracted to provide security services at the shopping centre. Section 23 (1) of the Act provides:
“If, at a place where A is employed (in this section referred to as “the workplace”), or otherwise in the course of A’s employment, B sexually harasses A and either — …….
(c) B is a client, customer or other business contact of A’s employer and the circumstances of the harassment are such that A’s employer ought reasonably to have taken steps to prevent it, then, for the purposes of this Act, the sexual harassment constitutes discrimination by A’s employer, on the gender ground, in relation to A’s conditions of employment.
Section 23(4) of the Act provides:
“According to the nature of the business of A’s employer, the reference in subsection (1)(c) to a client, customer or other business contact includes a reference to any other person with whom A’s employer might reasonably expect A to come into contact in the workplace or otherwise in the course of A’s employment.”.
Both the complainant and Mr. B worked in the same location for several months and knew each other. They were required to work in that environment on a regular basis and had frequent contact in the course of their employment – Mr. B was responsible for the safe keeping of keys etc for a numbers of rooms etc. in the centre. The complainant’s supervisor was aware of the extent and frequency of contact between them in the context of their duties. I am satisfied therefore that Mr. B was a person with whom the complainant’s employer might reasonably expect her to come into contact with in the workplace or in the course of her employment. Consequently, any behaviour perpetrated by Mr. B against the complainant which is found to be sexual harassment may constitute discrimination of her by the respondent on the gender ground in terms of section 23(1) of the Act.
5.4 I shall now deal with the question of whether or not the complainant was discriminated against by her employer on the ground of gender, in terms of section 6(2)(a) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, in that she was sexually harassed by Mr. B. The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 20011 sets out the procedural rule to be applied in cases of gender discrimination. This rule has been consistently applied by this Tribunal2 and the Labour Court3 as requiring the complainant in the first instance to establish facts from which discrimination may be inferred and where such facts are established it is for the respondent to prove the contrary on the balance of probabilities.
5.5 Section 23(1) of the Act (set out at paragraph 5.3 above) provides that sexual harassment of an employee constitutes discrimination of that person by his/her employer on grounds of gender. Section 23(3) of the Act defines sexual harassment as follows:
“(3) For the purposes of this Act —
(a) any act of physical intimacy by B towards A, …..
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.
It is not in dispute that Mr. A struck the complainant on the bottom. What is contested by the respondent is the number of times this happened and whether the complainant’s trousers and underwear were pulled down – Ms. D who was the complainant’s supervisor at the time witnessed the incident and disputes the complainant’s version of events. Where there is direct conflict of evidence an Equality Officer must decide, on balance of probabilities, which person’s evidence s/he finds more compelling. I note that the complainant reported the matter to the Gardaí early in the morning of 19 December, 2000 – a response which I believe would not normally occur unless there were serious difficulties or concerns for the complainant. I have examined a copy of her statement to the Gardaí and it is consistent with her version of events as outlined above. In the course of the hearing I found the complainant to be clear and forceful in her evidence. I set out at paragraph 5.8 below my concerns about the veracity of Ms. D’s evidence in the course of this investigation and I am satisfied, on balance, that the incident on 18 December occurred as the complainant described. I would point out however that if I had preferred Ms. D’s version of events I believe that even a single slap on the bottom is sufficient to constitute an act of sexual harassment. Such an approach is consistent with the decisions of the Equality Officer in A Complainant v A Health Board4 and A v A Gym.5. I note the respondent’s comment, whilst accepting Mr. B struck the complainant on the bottom that his actions were in no way intended as an act of any intimacy. The question of intent on Mr. B’s part is not relevant as section 23(3) of the Act clearly leaves the decision as to whether or not the behaviour is unwelcome with the complainant. I am satisfied that she found the behaviour unwelcome as she spoke with her husband about it on her return home (he confirmed this at the hearing), she reported the incident to the Gardaí later that night (19 December) and also reported the matter to both her employer and Mr. B’s employer the next morning (the first opportunity for her to do so).
The second element – the subjective test – as to what constitutes sexual harassment involves an assessment as to whether or not the behaviour could reasonably be regarded as sexually, or otherwise offensive, humiliating or intimidating to the complainant because she was female. I note that in the course of the hearing both Ms. D and the respondent’s HR Manager agreed that it was inappropriate for a man to strike a female colleague on the bottom and that such behaviour could be offensive and humiliating. I concur with such a view and in light of my finding that the incident occurred as the complainant described, I am of the opinion that the second element of the test is satisfied. In light of the foregoing I find that the complainant was sexual harassed contrary to the Act and has established a prima facie case of discrimination on the gender ground.
5.6 Section 23(5) of the Employment Equality Act, 1998 provides a defence for a respondent in cases of sexual harassment. This provision states:
“If, as a result of any act or conduct of B, another person (“the Employer”) who is A’s employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable —
(a) in a case where subsection (2) applies, to prevent A being treated differently in the workplace or otherwise in the course of A’s employment…….. and,
(b) in a case where subsection (1) applies (whether or not subsection (2) also applies) to prevent B from sexually harassing A …”.
I must therefore consider if the steps taken by the respondent after the complainant reported the incident are such as to be considered “reasonably practicable” to provide it with a defence to the finding of discrimination on the gender ground. The respondent states that when it became aware of the incident on 19 December, 2000 it took prompt action and acted in a professional and compassionate manner, offering the complainant time off work with pay pending the outcome of the investigation. It states that as the alleged harasser was not one of its employees it co-operated fully with the investigation conducted by his employer.
The respondent’s Regional Manager (Mr. M) accepts that he spoke with the complainant on the morning of 19 December, 2000 and informed her to pursue the matter with Mr. B’s employer. He states that he offered her time off with pay, that this offer was confirmed in writing to her later that day but it was declined. Mr. M did not take any further action on the matter until the next day when he was informed by Mr. P that Mr. B had been transferred from the centre and it had commenced an investigation into the complaint and he (Mr. M) was happy with this. Mr. M confirmed that the vast majority of the liaison between the respondent and Mr. B’s employer in connection with the investigation was carried out by Ms. D. I note he confirms he was aware that Ms. D was a witness to the incident and that she fundamentally disagreed with the complainant’s version of events. I also note his comments that his impression was the matter was concluded to the parties’ satisfaction, although he never sought nor received formal confirmation of this outcome.
5.7 Whilst I accept that there may be added difficulties in controlling an investigation process where one of the parties is not an employee, the Act makes it clear that the respondent is responsible for any discriminatory behaviour of Mr. B. Rather than making sure that aspects of its own policy on sexual harassment at work was complied with (and both Mr. M and Ms. D were aware of that policy) I am of the view that the respondent abdicated full responsibility to Mr. B’s employer and took no real action on the complaint. My view in this regard is supported by the fact that it left the matter up to the complainant to pursue. The appointment of Ms. D as its liaison person was totally inappropriate given that she was the complainant’s immediate supervisor, she was a witness to the incident, she had commented to the complainant that “it was only a joke” and Mr. B “was just messing” – an opinion she reached in full knowledge of the respondent’s policy on sexual harassment – and she fundamentally disagreed with the complainant’s version of events. It is impossible to see how she could have been objective in her task. The investigation conducted by Mr. B’s employer could at best be described as flawed. Initially it acted swiftly to the complaint and transferred Mr. B pending an investigation of the matter. However, it did not take a formal statement from the complainant (although it did so from others involved) and it provided no evidence which would indicate that it had reached an objective and balanced judgement on the complaint. It assumed that the matter was concluded following an acceptance by the complainant of an apology on behalf of Mr. B during the course of a meeting attended by the complainant, Mr. P, Ms. D and Mr. C. I am satisfied that this meeting occurred – although how it came about is problematic – and that during this meeting the issue of an apology was discussed. Three different versions of how and why this meeting was arranged were furnished to me – two by the respondent in its submission and its letter to the Equality Authority dated 13 September, 2001 and the other by Mr. P in his evidence at the hearing. I also note Mr. P’s comment at the hearing that “his impression of the situation was that the matter was resolved”, he never actually clarified whether or not the complainant accepted the apology and that the matter was closed. In addition, I find it difficult to accept the respondent’s proposition that a second party apology (from Mr. P) on Mr. B’s behalf, in circumstances where he (Mr. B) had acted in such a manner to prompt the complainant to report the matter to the Gardaí, would have been acceptable to the complainant in the circumstances. That been said I would accept that there may have been some confusion about the outcome of this meeting and that this confusion was compounded when Mr. M and other senior personnel in the respondent were under the impression that the matter was concluded, although as I stated above, they never sought confirmation of this. In light of the foregoing I cannot find that the respondent took steps as were reasonable practicable, in terms of section 23(5) of the Act to provide it with a defence under that provision.
5.8 I shall now deal with the complainant’s allegation of victimisation. Section 74(2) of the Act defines victimisation as follows:
“…., victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith —
(a) sought redress under this Act or any enactment repealed by this Act for discrimination
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, …..”
The central element of the complainant’s assertion of victimisation is that she was pressurised by Ms. D to drop her complaint and withdraw her statement from the Gardaí or she would lose her job. These allegations are denied by Ms. D. As I stated previously where there is direct conflict of evidence an Equality Officer must decide, on balance of probabilities, which persons evidence s/he finds more compelling. I have also commented
that I found the complainant to be clear and forceful in her evidence in the course of the hearing. . She was emphatic that Ms. D insisted she accompany her to the Garda Station to withdraw her statement to ensure she did so, whilst Ms. D states that she attended at the complainant’s request. I am inclined, on balance, to the complainant’s version of events because it appears odd to me that the complainant did not ask Ms. D to accompany her to the Station when she made her statement two days after the incident, an experience one might expect to be more traumatic for the complainant and requiring some form of support. I am also satisfied that Ms. D’s attitude towards the complainant from the time she made the complaint could be described as hostile as she openly suggested that she was lying to senior management in the respondent and she trivialised Mr. B’s behaviour as a joke and that this hostility emanates from the fact that Ms. A made a complaint of sexual harassment against Mr. B. My views in this regard are re-inforced by my observation of Ms. D’s general demeanour towards the complainant in the course of the hearing. I am satisfied, on balance, that the actions of Ms. D constitute victimisation of the complainant in terms of section 74(2) of the Act. Section 15 of the Act provides that “anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”. I find therefore that the respondent victimised the complainant in terms of 74(2) of the Act
6. DECISION OF THE EQUALITY OFFICER
6.1 I find that the respondent (i) discriminated against the complainant on the ground of gender, in terms of section 6(2)(a) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, when she was sexually harassed by an employee of a security firm in the course of her employment and (ii) penalised the complainant in circumstances amounting to victimisation within the meaning of section 74(2) of the Employment Equality Act, 1998 when she complained to her employer about the alleged treatment of her.
6.2 I must therefore decide what the most appropriate quantum of redress is in this case. As I indicated in paragraph 5.5 above, I am of the opinion that a single slap on the bottom is sufficient to constitute an act of sexual harassment. In the instant case the complainant was subjected to the most appalling attack on her personal dignity in that her trousers and underwear were pulled down and she was slapped a number of times on the bare bottom by Mr. B. When she quite correctly reported this matter to the relevant authorities she was threatened with dismissal, an act which compounds the discriminatory treatment and can be regarded only as penalisation of her. Section 82 of the Act provides that the maximum compensation which can be awarded by this Tribunal is 104 weeks’ remuneration. In the instant case this would equate to €21,000. It is well settled that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. In light of the foregoing and the fact that the complainant was treated in the most appalling manner, I consider the maximum compensation to be appropriate and I order that the respondent pay the complainant the sum of €21,000 in compensation for the effects of the discrimination and victimisation. The award does not contain any element of lost income. I would point out that I was constrained by the statute in the level of compensation which I could order and had that constraint not been place upon me I would have ordered a significantly higher award given the severity of the treatment to which the complainant was subjected. In addition to the financial compensation I also order the respondent –
(i) to review its policy on harassment/sexual harassment in the workplace to ensure that it accords with the Employment Equality Act, 1998-2004, in particular that it contains a mechanism for addressing complaints involving a client, customer or other business contact;
(ii) given the nature of the employment and working environment in which the respondent’s employees operates the review process referred to at (i) above must commence within three months of the date of this decision; and
(iii) all staff in its employment who have responsibility in staff management functions are given appropriate training in the policy.”
A Female Employee v A Recruitment Company
DEC-E2008- 015
“1. CLAIM
1.1 The case concerns a claim by a female employee that a recruitment company in Dublin, discriminated against her in terms of section 14(A)(1) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Acts as she was dismissed following her complaint.
2. BACKGROUND
2.1 The complainant submits that she was discriminated against in that she was subjected to sexual harassment on a night out with work colleagues. She submits that when she complained of the sexual harassment, she was victimised by her employer as it dismissed her from her job. The respondent accepts that messages were sent from the complainant’s manager’s phone, however, the manager denies that he sent them.
………………
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The claimant in this case alleges that the respondent discriminated against her in relation to her conditions of employment when she was sexually harassed by her manager on a night out from work on 12/13 September 2005. She claims that she was sent a number of explicit and suggestive text messages by her manager. Her manager accepts that messages were sent from his mobile phone but denies that he sent them. The complainant also claims that she was dismissed following her complaint to the respondent. I must firstly consider (i) whether the complainant has established on the balance of probability that she was sexually harassed. If I find that the complainant has established that she was sexually harassed, I must then consider (ii) whether the complainant’s employer is vicariously liable for the harassment. If I find that the complainant’s employer is vicariously liable, I must consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace. I will consider whether the respondent dealt adequately with the complainant’s complaint of sexual harassment and I will also consider the complainant’s claim of victimisatory dismissal. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the complainant and respondent. Whilst the complainant was subjected to rigorous cross examination during the hearing, Mr. C, the complainant’s manager chose not to give evidence in relation to the events and I have not therefore, had the opportunity to hear any oral evidence from him and he was not cross examined.
5.2 The complainant alleges that the respondent discriminated against her in relation to her conditions of employment when she was sexually harassed by her manager on a night out from work on 12/13 September 2005. Section 14A(1) of the Employment Equality Acts 1998 and 2004 provides that where a male harasses a female colleague or vice versa, the sexual harassment constitutes discrimination by the employer on the gender ground in relation to the victim’s conditions of employment.
5.3 The respondent denies in its written submission that the complainant was sexually harassed by her manager, Mr. C and he denies that he personally sent text messages to the complainant. I note that particular statement is contradictory to the contents of an e-mail sent by Mr. C to the complainant on 13 September 2005 stating “Firstly, purely for fun [Mr. B] and myself sent you a few texts for fun as I was made aware that [J] and yourself have had a snog or two last Friday, harmless fun and quite frankly none of my business.” Although the respondent denies that Mr. C sent the texts to the complainant, it accepts that messages were sent by a work colleague from Mr. C’s phone during the earlier part of the evening. Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature at the workplace or in the course of an employee’s employment being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment constitutes sexual harassment of the complainant – 14A(7)(a). Section 14A(7)(b) provides that such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. I have considered the contents of the e-mail from the complainant’s manager dated 13 September 2005 and I have heard the complainant’s direct evidence in the matter and on the balance of probability, I find that the complainant was sexually harassed by the text messages sent to her from Mr. C’s phone.
5.4 In the Labour Court Determination in the case of A Company -v- A Worker [1], the company while refuting allegations of sexual harassment relied on a number of counter allegations put together by employees who had been accused by the claimant, alleging that she was a willing participant in sexual banter and conversation in the workplace. In that case, whilst the Labour Court accepted that there was some element of the complainant being a willing participant in sexual banter, it found that the treatment the claimant received and the atmosphere that was directed towards her to be totally unacceptable. The Labour Court went on to find in favour of the claimant that she was sexually harassed and discriminated against on the gender ground. In the light of that case, the question whether thecomplainant in the instant case engaged in sexual banter is irrelevant in deciding whether she was sexually harassed. However, I consider that the Labour Court case should not be interpreted as a finding that sexual banter is permissible in any workplace and I consider that in certain circumstances, it could in itself constitute sexual harassment within the meaning of section 14A of the Employment Equality Acts 1998 and 2007.
Vicarious liability
5.5 Section 15(1) of the Employment Equality Acts 1998 and 2004 provides:
‘Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.’
I refer to section 56(4) of the Employment Equality Acts 1998 and 2007 which provides that an approved code of practice shall be admissible in evidence and if any provision of the code appears to be relevant to any question arising in any criminal or other proceedings including proceedings before the Director, it shall be taken into account in determining that question. The Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 S.I. No. 78 of 2002 refers to non workplace sexual harassment and harassment. It states that the scope of the sexual harassment and harassment provisions extend beyond the workplace for example to conferences and training that occur outside the workplace. It further states that it may also extend to work-related social events. In this regard, I refer to a decision by one of my colleagues that harassment which occurred at a Christmas party was discrimination by the employer in that case.[2] In the present case, the manager, the complainant and other employees from the respondent company were on a social night out after work. Indeed the complainant would not have been present had she not been employed in the respondent body. I therefore find that the actions of Mr. C and Mr. B, the complainant’s manager and work colleague were carried out in the course of their employment and notwithstanding that the actions may have been carried out without the employer’s knowledge or approval, the respondent is vicariously liable for the actions of Mr. C and Mr. B.
Section 15(3) Defence
5.6 Sections 15(3) of the Employment Equality Acts 1998 and 2004 provides that:
‘In proceedings bought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee –
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.’
The respondent submitted at the hearing that at the time of the harassment whilst there was a reference to sexual harassment as part of employees’ contracts, the respondent did not have a policy on the prevention of sexual harassment in place. I note that there is a reference in the complainant’s contract to sexual harassment and racial discrimination in the context of constituting acts of gross misconduct warranting summary dismissal. In the instant case, no evidence has been presented to indicate that the employer had taken any steps that were reasonably practicable to prevent sexual harassment occurring in the workplace and it cannot therefore avail of the section 15(3) defence.
Actions taken by the respondent
5.7 The complainant through her legal representatives by letter dated 16 September 2005 wrote to the respondent stating “We are informed by our client that she has been subjected to harassment of a sexual nature by you in the form of e-mails to her mobile telephone.” That letter goes on to refer to the complainant’s entitlement to initiate a claim before the Equality Tribunal in respect of the sexual harassment perpetrated on her. In its response dated 21 September 2005, the respondent did not refer the complainant to any policy detailing how her complaint might be progressed and it stated “Firstly, we must point out that no formal complaint has been made to our clients. We would submit that it is not appropriate for you to refer this matter to the equality tribunal until the full internal complaints procedures and investigations have been exhausted.” It appeared that the respondent was not treating the letter of 16 September 2005 as a letter of formal complaint, however, it did not advise the complainant of the manner in which a formal complaint could be made from its perspective. The letter proceeded to call upon the complainant to return to work on 26 September stating that would enable the respondent to make the appropriate investigations.
5.8 It appears to me that the respondent was unclear on how to handle the complaint of sexual harassment. This was exacerbated by the respondent’s failure to have policies and procedures in place to deal with complaints made either formally or informally. The failure to have such policies in place may also have had implications for the complainant in the situation that she found herself in that she could have been unsure where to direct her complaint, what she could expect to happen arising from a verbal complaint, what would happen on foot of a written complaint, whether the matter would remain confidential, what the procedure was for carrying out an investigation and what she could expect when the investigation was completed in circumstances where her complaint was upheld/not upheld. Indeed, the complainant stated that whilst her contract referred to a grievance procedure, it provided that employees shall have the right to a hearing by their immediate superiors which in the complainant’s case was Mr. C and she was therefore at a loss as to what to do.
5.9 As referred to at paragraph 5.7 above, in the letter of 21 September 2005, the respondent called upon the complainant to return to work on the following week to enable the respondent to make the appropriate investigations. Again, there is no clarification of how any investigation would proceed and it appears that any investigation was contingent on the complainant returning to work. The complainant responded through her advisors by letter dated 23 September 2005 stating that it took issue with the seriousness with which the respondent was dealing with the matter, in particular, in the light of the respondent’s statement that no formal complaint had been made. The complainant proceeded to refer to the letter of 16 September 2005 as a formal complaint. Her letter then proceeded to refer to the respondent’s allegations in relation to the complainant having a sexual relationship with other employees and stated that in that context, it was unrealistic that the complainant should be expected to return to work. The complainant’s representative again wrote to the respondent by letter dated 6 October 2005 stating that it was their opinion that any fair and proper investigation of the complainant’s grievance and complaints against Mr. C and the company was unlikely if the investigation was to be conducted by the company itself. She further stated that she believed that a proper investigation if one were conducted might make it possible for her to resume her job. She requested that her allegations of sexual harassment “now be fully and properly investigated.” and she proceeded to request that the investigation be conducted by an independent third party. The respondent responded by letter dated 12 October 2005 stating that it did not consent to the proposals set out in the complainant’s earlier letter. The letter states that it is noted that the complainant has not returned to work to enable the internal complaints procedure to be carried out and accordingly, the complainant’s employment is terminated. It appears that any investigation of the complainant’s complaint, although the precise nature of such an investigation was not specified, was entirely contingent on the complainant’s return to work. In its first written submission, the respondent states that the complainant’s employment was terminated as a consequence of her failure to indicate that she would return to work on the “agreed date”. The correspondence submitted does not indicate that any date of return to work was agreed.
Victimisation
5.10 Section 74(2) of the Employment Equality Acts 1998 and 2004 provides, inter alia, that victimisation occurs where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer.
(b) any proceedings by a complainant;
(f) an employee having opposed by lawful means an act which is unlawful under this Act ……… or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
Sexual harassment is expressly prohibited by section 14A of the Employment Equality Acts 1998 and 2004. The complainant made a complaint of sexual harassment to the respondent by letter dated 16 September 2005. That letter also referred to the complainant’s entitlement to initiate a claim before the Equality Tribunal.
5.11 It is clear that at that stage, the respondent did not treat the complainant as having made a complaint as it submitted in its letter dated 21 September 2005 that “no formal complaint has been made to our clients.” and it proceeded to make an investigation conditional on the complainant’s return to work. The complainant by letter dated 23 September 2005 disputed that no formal complaint had been made by her and stated that as it appeared “that the company never had any intention of investigating the matter and as such the Equality Agency [sic] is the appropriate forum to ensure our client gets a fair hearing in respect of the complaints set out in our letter.” It appears that the complainant did not receive a response and it subsequently wrote to the respondent again on 6 October 2005 requesting that the complainant’s complaint of sexual harassment be fully and properly investigated. The respondent’s response on 12 October 2005 indicated that the complainant had in fact been dismissed on 27 September 2005.
5.12 As stated at paragraph 5.7 above, in its first written submission, the respondent states that the complainant’s employment was terminated as a consequence of her failure to indicate that she would return to work on the agreed date. However, it is the case that on the date of her dismissal, the complainant had at that stage been absent for two weeks (since 13 September 2005) and indeed in the e-mail from Mr. C on that date, she was invited back to work that following Friday or Monday. The complainant also had a call from Ms. B on 15 September enquiring whether she would be returning to work on the Friday. It is the case therefore that there were calls for her to return to work from very early in the absence. However, it was only after the complainant’s correspondence of 23 September 2005 wherein she insisted that she had made a formal complaint on 16 September and also indicated that the Tribunal appeared to be the appropriate forum to ensure that she got a fair hearing in respect of the complaints set out in her letter that she was dismissed. Whilst the respondent in its submission received on 14 February 2008 submits that the date of the complainant’s dismissal is entirely coincidental to the letter dated 23 September 2005, on the balance of probability, I find that the complainant has established a prima facie case of victimisatory dismissal which the respondent has failed to rebut.
5.13 In considering redress for victimisation, I have considered that victimisatory dismissal is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation. In relation to the issue of compensation, I have had regard to the Judgment of the European Court of Justice in Von Colson & anor v. Land Nordrhein-Westfalen[3] wherein it was stated that for the purpose of imposing a sanction for a breach of the prohibition of discrimination:
…….. in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation……..
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant in terms of section 14A of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts in relation to her conditions of employment. I also find that the complainant was victimised within the meaning of section 74(2) of the Acts when she was dismissed.
6.2 In accordance with section 82(1) and (5) of the Employment Equality Acts 1998 – 2007, I hereby order that:
1. the respondent pay the complainant the sum of €10,000.00 compensation for the effects of the discrimination;
2. the respondent pay the complainant the sum of €15,000.00 compensation for the effects of the victimisation;
3. the respondent pay the complainant interest at the Courts Act rate on the amount awarded for compensation in relation to discrimination on the gender ground in respect of the period beginning on 10 November 2005 (being the date of the reference of the claim) and ending on the date of payment;
4. the respondent draft a policy on the prevention of harassment and sexual harassment in the workplace in accordance with the Equality Authority Code of Practice on Sexual Harassment and Harassment at Work (The Code was given legal effect by Statutory Instrument entitled ‘Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2002’ (S.I. No. 78 of 2002)), take appropriate measures to communicate the policy to all its employees and display it permanently in a prominent position in the respondent’s premises.”
Ms. O’ N v An Insurance Company
AEE/00/1
“1. CLAIM
1.1 The case concerns a claim by a female employee that her employer discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 in contravention of section 23 of the Act in relation to her conditions of employment.
2. BACKGROUND
2.1 The complainant claims that she was sexually harassed by another employee on a night out with the Sports and Social Club of the respondent. The harassment occurred in a night club after a pub quiz which took place earlier in the evening had ended. The complainant submits that at her induction training she was encouraged to become a member of the Social Club and that the Social Club is heavily sponsored by the respondent. She claims that the harassment took place in the course of her work. The respondent did not deny that the complainant was sexually harassed but denied that the harassment constituted discrimination by it as the harassment did not occur in the workplace or in the course of the complainant’s employment.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 26 March 2003. On 16 December 2003, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 26 January 2004 and from the respondent on 2 April 2004. A joint hearing of the claim was held on 21 July 2004.
…………………..
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender ground in relation to her conditions of employment. I will consider whether the respondent directly discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of sections 8 and 23 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties
Issue whether sexual harassment occurred
5.2 I must firstly consider whether the complainant has established that she was sexually harassed. Section 23(3) (where A and B represent two persons of the opposite sex) provides:
‘For the purposes of this Act –
(a) any act of physical intimacy by B towards A,
(b) any request by B for sexual favours from A, or
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.’
The complainant alleges that she was sexually harassed in that Mr. C, a fellow employee, grabbed her breast in a night club whilst she was on a night out with the Social Club. In the course of the respondent’s investigation following the complainant’s complaint to the respondent, Mr. C accepted that an incident of inappropriate behaviour took place towards the complainant in a night club. I find that the behaviour of Mr. C amounted to sexual harassment as it was unwelcome to the complainant and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to her. The complainant has therefore established that she was sexually harassed.
5.3 The respondent submits that it investigated a complaint that Mr. C had “fondled” the complainant’s breast. It submits that it did not investigate a claim of violent behaviour towards the complainant. The complainant’s submission to this forum states that Mr. C “grabbed her breast, violently “. At the hearing, the complainant submitted that ‘grabbed’ was the word she used in her discussions with Mr. T on 28 November 2002. She did not use the word ‘fondled’ and may or may not have used the word ‘violently’ and she could not be certain. Mr. T said that he was not quoting her in relation to their discussions but that he did not pick up any sense of violence from their conversation. I am therefore proceeding on the basis that the complainant reported to Mr. T that Mr. C “grabbed” her breast.
Discrimination by the employer in accordance with section 23(1) of the Act
5.4 I must now look at whether the sexual harassment constituted discrimination by the complainant’s employer in accordance with section 23(1) or (2) of the Act in relation to the complainant’s conditions of employment. Section 18(1) provides that for the purposes of Part III of the Act dealing with equality between men and women, A and B represent two persons of the opposite sex so that, where A is a woman, B is a man and vice versa. Section 23(1) provides:
“If, at a place where A is employed (in this section referred to as “the workplace”), or otherwise in the course of A’s employment, B sexually harasses A and either –
(a) A and B are both employed at that place or by the same employer,
(b) B is A’s employer, or
(c) B is a client, customer or other business contact of A’s employer and the circumstances of the harassment are such that A’s employer ought reasonably to have taken steps to prevent it,
then, for the purposes of this Act, the sexual harassment constitutes discrimination by A’s employer, on the gender ground, in relation to A’s conditions of employment.”
Section 23(1) therefore provides that sexual harassment which occurs in the workplace or otherwise in the course of employment constitutes discrimination by the employer on the gender ground in relation to the employee’s conditions of employment.
5.5 In this particular case, the complainant was on a night out with a social club which consisted of a pub quiz and attendance at a nightclub on the same premises. The harassment occurred in the night club and did not, therefore, occur in the workplace. The complainant submits that the harassment occurred in the course of her employment. She submitted that she was told about the Social Club at her induction training and also told that she should join. A member of the committee of the Social Club (who was also the complainant’s brother) stated that there were six committee members and he was asked by someone else to become a committee member. The Club has approximately 425 members (total staff of respondent approximately 1400) who pay €5 per month. The respondent matches the amount received from members each month and pays the corresponding amount to the Club on a quarterly basis. The Social Club also seeks additional funding from the respondent from time to time. There was a free bar both in the pub when the quiz was taking place and subsequently in the night club. The complainant submits that the sexual harassment occurred in the course of her employment as the Sports and Social Club is an “umbrella group” of the respondent which is heavily sponsored by the respondent. She submitted that significant amounts of alcohol were provided free on the night and someone from the respondent organisation should have been there in a supervisory capacity. She submits that the committee of the Club received no instructions on how to carry out its activities and it was left to its own devices. She further submits that on the night, nothing was done about Mr. C’s behaviour from the time when she went to the night club where initially he was staring and leering at her and the situation was permitted to escalate. The respondent denies that the complainant was acting in the course of her employment on the evening in question.
5.6 In relation to section 23(1) of the Employment Equality Act, 1998, I must consider whether the complainant as opposed to Mr. C was acting in the course of her employment when the harassment occurred. The respondent did not dispute that the Social Club was mentioned to the complainant at her induction training. However, there is no compulsion on anyone to join the Club and I note that approximately less than one third of the employees are members. The Social Club was not set up by the respondent and has no connection with it other than its membership comprises employees of the respondent and it provides funding to it. Whilst it is not in question that the respondent provides considerable sponsorship to the Social Club, I do not consider that financial sponsorship by an employer at a social event where sexual harassment occurs is sufficient in itself and in the absence of other factors to bring an act of sexual harassment within the course of employment of a potential complainant. The complainant was employed as a Call Centre Agent in the Customer Desk Department of the respondent. The complainant did not attend the night club for the purposes of or in furtherance of her work and I therefore find that she was not sexually harassed in the course of her employment. The question of whether the sexual harassment constitutes discrimination by the complainant’s employer does not therefore fall to be dealt with under section 23(1) of the Employment Equality Act,
1998.
Discrimination by the employer in accordance with section 23(2) of the Act
5.7 I will therefore consider whether the sexual harassment constituted discrimination within the meaning of section 23(2) of the Act which provides:
“Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A’s employment, if, in a case where one of the conditions in paragraphs (a) to ( c) of that subsection is fulfilled –
(a) B sexually harasses A, whether or not in the workplace or in the course of A’s employment, and
(b) A is treated differently in the workplace or otherwise in the course of A’s employment by reason of A’s rejection or acceptance of the sexual harassment or it could reasonably be anticipated that A would be so treated,
then, for the purposes of this Act, the sexual harassment constitutes discrimination by A’s employer, on the gender ground, in relation to A’s conditions of employment.”
5.8 In accordance with section 23(2), it is irrelevant whether the harassment occurred in the workplace or in the course of employment. However, it constitutes discrimination by the victim’s employer only where the complainant is treated differently in the workplace or otherwise in the course of her employment by reason of her rejection or acceptance of the sexual harassment or it could reasonably be anticipated that the victim would be so treated. In this particular case, in accordance with section 23(2), subsection (a) of section 23(1) is fulfilled in that the complainant and Mr. C are both employed by the same employer. I have found at paragraph 5.6 above that the harassment did not occur in the workplace or otherwise in the course of the complainant’s employment. On the day after the incident, Friday, 22 November 2002, the complainant was on annual leave and was on uncertified sick leave until the day that she was due to cease working with the respondent on 28 November 2002. In the instant case, the complainant was not treated differently in the workplace or otherwise in the course of her employment by reason of her acceptance or rejection of the harassment.
5.9 In accordance with section 23(2)(b) of the Act, I must also consider whether it could reasonably be anticipated that the complainant would be so treated. On the night of the incident, the complainant was assisted by one of her colleagues, Mr. F (who was a supervisor, although not the complainant’s supervisor and not a member of management), firstly in that he initially asked Mr. C to leave the complainant alone and secondly in that he asked Mr. C to leave the night club after the incident in which the complainant’s breast was grabbed. In considering whether the complainant might be treated differently in the workplace, I note that the respondent had a policy which dealt with harassment including sexual harassment. When the complainant made a verbal complaint to management subsequently, her complaint was investigated in accordance with the respondent’s informal procedure as set out in its Harassment and Bullying Policy. The “Non Formal Procedure” provides that:
“The Manager will approach the alleged perpetrator, outlining the nature of the complaint and the impact on the complainant. Where the alleged perpetrator accepts the nature of the complaint, resolution of the problem may take place in a low-key manner. The Manager will agree with the individual how her/his behaviour should be modified. However, where the alleged perpetrator disputes the content of the complaint, a formal investigation may be necessary to resolve the issue.”
5.10 The “Formal Procedure” provides that “A formal investigation will take place where
– The seriousness of the issue, in the view of Management requires it or
– Where, following the non-formal procedures, there are conflicting versions of the alleged harassment/bullying from the complainant and the alleged harasser.
The complainant is asked to submit a formal complaint in writing within seven working days.”
The policy also provides that the alleged perpetrator is asked for a written response within seven days and that the outcome of the investigation will be conveyed to both parties. It also provides for the taking of disciplinary action against the perpetrator if the complaint is substantiated.
5.11 The complainant initially met with Mr. T on 28 November 2002 following her telephone request to meet with the Chief Executive Officer of the respondent who was unavailable. At that meeting, she made her complaint in respect of the events of 21 November. As indicated to the complainant by Mr. T at that meeting, a copy of the respondent’s group policy on Harassment and Bullying was forwarded to her. The letter dated 28 November 2002 states “Please read through these procedures carefully and call me next week to discuss same.” At the hearing, the complainant stated that she had previously received a copy of the policy either with her contract or handed separately to her. The complainant met Mr. T over two and a half weeks later on 16 December 2002. The respondent submitted that at the meeting on 16 December 2002 with Mr. T, the complainant indicated that she did not wish to make a formal complaint but requested a written apology from Mr. C, a note to be placed on Mr. C’s file and to be informed if any similar complaint arose in respect of Mr. C. At the hearing of the claim, the complainant stated that she did not consider making a complaint in writing and it appears that she was not asked to do so by the respondent. A written apology to the complainant was provided by Mr. C and forwarded by the respondent with a letter dated 23 December 2002. A copy of the apology and the respondent’s letter were placed on Mr. C’s personnel file.
5.12 Whilst it could be argued that the respondent should have instituted a formal investigation in line with its Harassment and Bullying Policy as the seriousness of the issue required it, the complainant did not dispute the respondent’s statement that at the meeting on 16 December 2002, she stated that she did not want to make a formal complaint. It could therefore be argued that the respondent was constrained somewhat by the complainant’s decision that she did not want to make a formal complaint and she did at the time of the meeting on 16 December seem clear in her mind in relation to the three specific actions that she wanted the respondent to take. Her decision in relation to the actions she wanted the respondent to take was some two and a half weeks after her initial meeting with Mr. T and over three and a half weeks after the incident of harassment took place. The complainant was therefore afforded sufficient opportunity to consider the matter of how she wanted to progress the complaint and she did not submit that the respondent suggested the actions in question to her. In circumstances such as those in issue, it could be considered to be prudent for a person harassed to take independent advice, legal or otherwise and I note that the complainant indicated subsequently by letter dated 19 December 2002, that she intended to take legal advice. The respondent by letter dated 23 December 2002 stated:
“I would appreciate if you would clarify your position in relation to this complaint. I agreed the above basis of resolution with you last Monday and I spoke to him [Mr. C] in good faith. I will need to inform him if you wish to take this complaint further either internally on a more formal basis or by taking legal proceedings.” That letter recognises the possibility of the complainant proceeding the formal internal route and it does not appear to rule it out as an option for her.
5.13 On the night in question, a colleague of the complainant’s attempted to deal with the matter in a helpful manner. Once the complainant made her complaint to management subsequently, the respondent treated the matter seriously and made every effort to investigate the matter and dealt with it within the confines of the non-formal procedure selected by the complainant. A copy of Mr. C’s apology and the respondent’s covering letter which accompanied the apology were placed on his file. Taking into account the actions of the colleague in question and the actions of management, on the balance of probability, I do not consider that it could reasonably be anticipated that the complainant would be treated differently in the workplace or otherwise in the course of her employment by reason of her rejection of Mr. C’s behaviour. I therefore find that the sexual harassment does not constitute discrimination by the complainant’s employer on the gender ground in
relation to her conditions of employment in terms of section 23(2) of the Act.
5.14 As I have not found that the sexual harassment constituted discrimination by the complainant’s employer within the meaning of section 23(1) or 23(2) of the Act, it is not necessary for me to proceed to consider the issues of vicarious liability of the respondent for the actions of Mr. C and the defences available to it. I must point out that this decision must not be interpreted as holding that sexual harassment which occurs outside the workplace may never amount to discrimination by an employer. However, sexual harassment occurring outside the workplace amounts to discrimination by an employer under the Employment Equality Act, 1998 only in certain circumstances in accordance with section 23(2) of the Act.
Equality Policy
5.15 The policy submitted by the respondent deals with harassment, sexual harassment and bullying. I am not satisfied as to the comprehensiveness of the document taking into account the provisions of the Employment Equality Act (Code of Practice)(Harassment) Order 2002 S.I. No. 78 of 2002. Chapter 4 of the Code deals with the preparation of a policy on harassment and sexual harassment and details the contents of such a policy. I note that it states in relation to the definition section of a policy that it, inter alia, should state that the protection extends “beyond the workplace to conferences and training and may extend to work-related social events”. In accordance with section 79(6) of the Act, I cannot make an order in relation to the drafting of a comprehensive Equality Policy as I have not found in favour of the complainant. However, I recommend that the respondent draft an Equality Policy which takes into account the provisions of the Code of Practice.
6. DECISION
6.1 Based on the foregoing, I find that the complainant was sexually harassed within the meaning of section 23(3) of the Employment Equality Act, 1998. I also find that the sexual harassment did not constitute discrimination by the complainant’s employer on the gender ground in relation to her conditions of employment within the meaning of section 23(1) or 23(2) of the Act.”
County Louth VEC -v- The Equality Tribunal
[2009] IEHC 370
McGovern J.
“3. The law
3.1 The respondent was established under the Employment Equality Act 1998 (as amended) (“the Act”) to hear and determine complaints of discrimination in employment on prohibited grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.
…..
The following time limit is prescribed in section 77 (5)(a):-
“(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimization may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77 6(A) of the Act goes on to provide:-
“(6A) For the purposes of this section-
(a) discrimination or victimisation occurs-
(i) if the act constituting it extends over a period, at the end of the period.
….”
This provision envisages a case of continuing discrimination with the time limit referable to the point at which the discrimination ended.
……………..
4. The issues
4.1 Two principal issues arise for determination in these proceedings. The first is whether the respondent has jurisdiction to hear evidence at the hearing of the notice party’s allegations going back over ten years which were not contained in the Form EE1? Is the jurisdiction of the respondent to investigate a complaint limited to a consideration the incidents occurring on the two dates specified in the form only? The second issue is whether the exclusion of the applicant’s witnesses from the hearing room constituted a breach of fair procedures.
5. Jurisdiction of the Equality Tribunal
The applicant’s submissions
5.1 Mr. McDonagh S.C. submitted that the object of these proceedings was not to stop the investigation into notice party’s complaint but to seek to put parameters on the investigation into it. He contended that the allegations made by the notice party during the hearing were outside the terms of the original complaint in the Form EE1 and introduced new issues, of which the applicant had no notice, and could not be lawfully be investigated by the respondent as it was outside of its jurisdiction. He further submitted that the written submissions of the notice party dated 19th September, 2007, though put on notice to the applicant in advance of the hearing, strayed considerably outside the ambit of the terms of complaint referred by the notice party to the respondent, and were lodged more than twelve months after the applicant retired. The alleged discriminatory acts, of which the notice party complained in the Form EE1, related to the period between 16th December, 2005 and 10th March, 2006. What the respondent was seeking to do, Mr. McDonagh argued, was to squeeze several allegations going back over a decade into the complaint in its original form. It was submitted that it was the Form EE1 that conferred jurisdiction on the Tribunal and was a condition precedent to the Tribunal’s jurisdiction to investigate into the matters alleged.
5.2 The applicant accepted that s. 77(6A) allowed for the respondent to investigate matters which allegedly occurred more than six months prior to the date upon which a particular claim was submitted to it, but this was only in circumstances where a complaint was lawfully made to it in respect of such matters. It submitted that the notice party had not indicated that there was continuing discrimination against him over many years on the form, and that as a result; allegations pertaining to those previous years could not be investigated. In addition, it contended that as the further allegations in the written submissions were made over twelve months after the notice party had retired, they were outside the six-month time limit prescribed by section 77(5)(a).
5.3 The applicant relied on the case of Bank of Scotland (Ireland) v. Employment Appeals Tribunal (Unreported, High Court, Ó Caoimh J. 15th July, 2002) in support of its contention that the presentation of a potential claim to a Tribunal within the requisite timeframe was a condition precedent to the jurisdiction of the Tribunal. It sought to distinguish the case of Aer Lingus v. The Labour Court (Unreported, High Court, 26th February, 1988, Carroll J.) (Unreported, Supreme Court, 20th March, 1990), upon which the respondent relied, on the basis that the Labour Court was concerned, not with a time limit, but with whether claims of unlawful discrimination could be based on events which occurred prior to the Employment Equality Act 1977.
5.4 The applicant denied that it was acting in a premature fashion by instituting judicial review proceedings at this juncture. It argued that if it was to wait until the end of an appeal to the Labour Court before bringing a judicial review, that it would not be efficient or cost effective, in that the whole matter may ultimately have to be re-investigated.
The respondent’s submissions
5.5 Mr. Durcan S.C., for the respondent, noted at the outset of his oral submissions the “broad church” of complainants who came before the respondent, some of whom were legally represented and some of whom were not. He warned of the dangers of introducing unnecessarily formal or complex procedures in respect of such a wide group. He submitted that ss.77 (1) and 79 conferred jurisdiction on the respondent to investigate complaints. Part of the investigation process would, in his submission, be taken up with an investigation into whether there had been compliance with the statutory conditions or not. The respondent argued that there is a discretion on the part of the Director of the respondent or the Equality Officer, if carrying out an investigation, to deal with this matter by way of a preliminary issue or not. If it was decided not to deal with it by way of a preliminary issue, it formed part of the substantive hearing. Counsel for the respondent noted that no application was made for a preliminary hearing in this case. He cited Aer Lingus v. The Labour Court (Unreported, High Court, 26th February, 1988, Carroll J.) (Unreported, Supreme Court, 20th March, 1990) in support of his argument that the holding of a preliminary hearing was not necessary to deem a complaint receivable, and that it was permissible to consider the compliance with the statutory conditions of the case as part of the substantive hearing.
5.6 The respondent contended that the Form EE1 was only intended to set out the generality of the complaint and its basic details. It submitted that to limit a complainant to the matters set out in the referral form would be to unjustly and unlawfully fetter the manner in which the Oireachtas intended the investigation to proceed as set out in the Act. The complaint form should not, it argued, be converted into a rigid pleading which could not be developed or amended. In this regard, counsel for the respondent drew an analogy with a High Court writ, which clearly can be amended in appropriate circumstances. It would be extraordinary, he contended, that in a Tribunal setting, a claim could never be expanded out, especially given that the form itself requires “brief details” of the complaint and where it is conceivable that a form may be filled out without legal advice. In addition, he noted that the Act provided for a situation where a continuous act of discrimination is alleged to have occurred.
5.7 The fact that the Equality Officer in this case had decided to hear all the evidence was, in his submission, in accordance with section 79(1A). He argued that, as she had not yet made a decision as to the temporal limit of the complaint, that these proceedings were premature. In addition, he submitted that it would be untenable for the respondent not to be permitted to inquire into historical evidence, given that the Act envisages continuous acts of discrimination.
The notice party’s submissions
5.8 Mr. Kenneally S.C., for the notice party, submitted that the applicant was on full notice of the allegations the notice party was making against it. The Form EE1 was, in his submission, to be read in conjunction with the detailed submission of 19th September, 1997, where the ambit of his complaint was broadened temporally. It was noteworthy, he stated, that although that submission was delivered to the applicant some one year and three months prior to the hearing, the applicant had not delivered its response to it until the day before the hearing commenced.
6. Conclusion
6.1 In my view, the case of Bank of Scotland (Ireland) v. Employment Appeals Tribunal (Unreported, High Court, Ó Caoimh J. 15th July, 2002) does not assist the applicant, as it is clear, on the facts, that the claim by the notice party was made within time and in that way it differs from this case. The Aer Lingus Teoranta v. Labour Court (Unreported, High Court, 26th February, 1988, Carroll J.) (Unreported, Supreme Court, 20th March, 1990) case supports the argument of counsel for the respondent who said that the holding of a preliminary hearing was not necessary to deem the complaint receivable and that it was permissible for the respondent to consider the compliance with the statutory conditions of the case as part of the substantive hearing.
6.2 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 very 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.
6.3 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.
6.4 It is clear that on 19th September, 2007, details of the notice party’s claim were given to the applicant. These details went beyond the information contained in the EE1 form, but were part of the same complaint, namely, discrimination on the grounds of sexual orientation. The replying submissions were not made available until 21st January, 2009, which was the date before the hearing. I am satisfied that the applicant had ample notice of the claim being made against his employees and should have been in a position to deal with them at the hearing before the Equality Officer. The applicant could argue that there was one matter on which it did not have notice in advance of the hearing, namely, the incident of the rock being thrown into the classroom in 1999, and the complaint made to Ms. Nugent. On the other hand, there is a reference in the statement to the Tribunal made on 19th September, 2007, in which the notice party refers to the fact that stones were thrown at him in the classroom. It is clear, however, that Ms. Nugent attended the hearing. Indeed, one of the issues arising in this application was whether or not it was fair that she was asked to leave the room while the notice party was giving evidence. It seems to me that she would have been in a position to deal with the evidence on this point, once she was informed of what the notice party had said and she could give her account of the event.
6.5 I am satisfied, therefore, that the applicant was in a position to deal with the claims made by the respondent, even if they went beyond the ambit of what is contained in the Form EE1.
6.6 Apart from the issue concerning Ms. Nugent referred to above, the applicant was concerned that its witnesses remain outside the room while the notice party gave his evidence. This forms part of the complaint in this application. The Equality Officer was entitled to run the hearing of the complaint as she saw fit, so long as it complied with the principles of natural and constitutional justice. It is quite easy to understand why an Equality Officer might regard this as a reasonable procedure because complainants, in that particular forum, might feel intimidated if the employees, against whom they are complaining, were all present in the same room. What is essential, however, is that the employees complained against, know the case being made against them and that they either present themselves or are represented at the hearing so that they can confront the accuser and cross-examine him. It appears that there was a representative of the applicant present who was in a position to cross-examine the notice party on his evidence, and the relevant witnesses for the applicant were available to give their own account of events and, where necessary, to instruct the applicant as to the accuracy of the notice party’s account.
6.7 It is important to emphasize that the hearing before the Equality Tribunal is not a hearing in a court of law with all the attendant formality that would exist in such a forum.
6.8 Having considered the evidence in this matter, and the submissions of counsel, I have reached the conclusion that the applicant is not entitled to the reliefs sought for two reasons:
(i) the respondent had not made a final determination on the issue of the temporal limit of the complaint;
(ii) the procedures which were adopted by the respondent were not unfair or contrary to natural or constitutional justice.”
HSBC Asia Holdings BV & Anor v Gillespie
[2011] ICR 192, [2011] IRLR 209
EMPLOYMENT APPEAL TRIBUNAL UNDERHILL J.
“I need not set out para. 24 of the Details of Claim in full. It is headed “Background in relation to sexual harassment complaints”. It starts:
“The Claimant will further rely upon acts of sexual harassment that she was subjected to when posted to other departments before she moved to the Group Risk Department in London as background in relation to her claims of sexual harassment in that department, as they reflect a culture within the organisation in which discrimination is wide-place and/or in which it is tolerated or not properly tackled.”
There follow five sub-paragraphs which I can summarise as follows:
(1) While she was in Kuala Lumpur and Penang in 1991/1992 various sexist comments, including one made by the then Chief Executive Officer of HSBC India, Mr Dobby (who I am told retired in 1994), are said to have been reported to her. Mr Davies, the Head of Human Resources in Malaysia, is said to have told the Claimant that this was representative of the culture among IMs. It is also pleaded that clients were taken to karaoke clubs at which the men in the party were entertained by hostesses, which the Claimant found embarrassing and uncomfortable.
(2) While she was in Bombay in 1992/1993 Mr Dobby is said to have referred to the Claimant as “Bambi” and made other sexist – though, I should in fairness make clear, not in any way lewd – comments to her.
(3) A number of different allegations are made about the Claimant’s experience in Hong Kong in 1993/1994. They include allegations of exclusion from important events, expressly or implicitly because she was a woman (on one occasion by her line manager, Mr Wilson); the use by unnamed colleagues of the name “Barbie”; one incident of sexually suggestive conduct towards her by a named colleague; and an episode of, to put it shortly, “stalking” – with one particularly gross feature – by an unnamed IM.
(4) When the Claimant was in Hong Kong in 2000, she is said to have been excluded from a presentation on Islamic banking and to have been told to answer the phones while her colleagues (all men) attended the presentation.
(5) When the Claimant was at Chiswick High Road in 2003/4, her manager is said to have suggested that they should discuss her next review over dinner.
I have not in that summary identified all the colleagues who are pleaded by name, either as perpetrators of conduct complained of or as having reported such conduct to the Claimant. There are several, but there are also a number who are mentioned but not named. Some more names were given in the Further Information. Most of the individuals named have retired or left HSBC.
…….
(9) Discrimination claims constitute a particular class of case in which it may – I emphasise “may” – be appropriate to decide questions of admissibility in advance of the hearing. It is notorious that there is a tendency in such cases for claimants to adduce evidence of very many incidents of alleged ill-treatment often extending over long periods of time and that this can lead to very long hearings which put an enormous burden both on the parties and on the tribunal and carry the risk of the essential issues being obscured in a morass of detail. In Chattopadhyay (above) Browne-Wilkinson P said, at pp. 139–140:
“… we are very conscious of the great dangers of opening too widely the ambit of an inquiry under the Race Relations Act 1976. If this is done and not controlled, industrial tribunals will be faced with numerous issues on matters only indirectly relevant to the main issue. This in turn would lead to long and complicated hearings and great expense and inconvenience to the respondents. It is not in the best interests of those who are being racially discriminated against that the protection of their rights before tribunals should become a matter of great expense and complication. The end result of so doing would be to render the legal redress they have difficult and expensive to obtain. In the circumstances there is a very heavy burden on legal advisers, the Commission for Racial Equality and the Equal Opportunities Commission to ensure that matters of the kind that we have had to consider in this case are not introduced into a case, except where they are satisfied that there is a real probability that they will affect the outcome. This judgment should not be treated as a charter for wholesale allegation of subsequent events.”
As appears, those observations were made in a case, where, unusually, the evidence whose admission was disputed concerned incidents subsequent to the acts complained of; but they are equally applicable where it concerns alleged prior incidents. Similar observations have been made from time to time in later cases: see, e.g., per Mummery LJ in Commissioner of Police of the Metropolis v. Hendricks [2003] ICR 530, at paras. 53-54 (pp. 544-5).
……………..
Mr. Craig’s essential case is that the relevance of the background allegations is not that they cast light directly on the conduct or motivation of individuals against whom allegations are made in para. 20 but that – as pleaded in para. 24 – they “reflect a culture within the organisation in which discrimination is wide-place [sic: this is a neologism, but not a bad one, conflating, I presume, “widespread” and “commonplace”]”. It is unnecessary when one reads the word “culture” in this context to reach for one’s revolver, but it is nevertheless an imprecise term, and it needs to be appreciated how an allegation of a “discriminatory culture” fits into the proper legal approach. In a case of (direct) discrimination the ultimate question will always be whether the claimant was treated in the way complained of by one or more individuals on the proscribed ground (or – as we will soon be saying – because of the protected characteristic). Where there is a dispute about whether the particular acts complained of occurred, or whether they were done with a discriminatory motivation, proving that (say) sexist behaviour or talk was common in the workplace, which is essentially what a discriminatory “culture” means, may well assist in the determination of that dispute (though it should not be allowed to distract the tribunal’s ultimate focus from the particular acts complained of). In harassment cases it may also be relevant in another way, in as much as “a discriminatory culture” may be an acceptable synonym (though synonyms are best avoided so far as possible) for the statutory language of a “hostile, degrading, humiliating or offensive environment”. In the present case evidence showing a discriminatory culture in the Group Risk department is plainly relevant for either or both of those reasons. But the para. 24 allegations do not relate to the Group Risk department. Mr. Linden questioned what “organisation” was being referred to in Mr. Craig’s pleading: it was plainly not the entirety of HSBC worldwide. Mr. Craig’s response was that the organisation in question was “the IM community” and the other senior managers with whom the Claimant naturally dealt. IMs, moving as they did throughout the HSBC group, were “effective culture–carriers”, and showing that they were infected by a sexist culture was capable of strengthening the Claimant’s case that such a culture existed in the Group Risk department. I find this unconvincing. Even assuming that the para. 24 allegations tend to show a sexist culture at the dates in question among IMs or some other senior managers and that the position then was a good guide to their culture ten or fifteen years later, Group Risk was not an “IM entity”. Very few of those named in para. 20 are IMs: in particular, Mr. Pendrill, Mr. Insua and Mr. Raymen are not. Likewise, the senior managers referred to in para. 24 had no involvement with the pleaded events in Group Risk. I repeat that in reality the basis for the Tribunal’s decision on the allegations in para. 20 (and, to the extent that this is relied on, on the other pleaded allegations) will, inevitably, be the facts pleaded in that paragraph and the evidence supporting them. The Tribunal will have to decide whether the pleaded events occurred and/or whether they constituted harassment. They are numerous and circumstantial. It is frankly fanciful to suppose that it will be assisted in reaching its decision about those events by considering evidence of other alleged acts involving people in other departments many years previously. The same applies – indeed a fortiori – if, which may be unlikely, the Tribunal has to decide questions of discriminatory motivation. Even if there was some theoretical relevance, as the Judge thought, that relevance is, in his own word, marginal; and I am quite sure that the time and expenditure of costs consequent on the admission of the “background” pleaded in para. 24 would be unjustified by any assistance which it could give the Tribunal.
I therefore allow the appeal on this aspect and direct that evidence of the para. 24 allegations will be inadmissible at the hearing.
…………..
Hazra v Waterford Regional Hospital
DEC-E2003-044
“1. DISPUTE
This dispute involves a claim by Dr. Hazra that he was (i) discriminated against and (ii) harassed, on grounds of race, within the meaning of section 6(2)(h) of the Employment Equality Act, 1998 and in contravention of sections 6, 8 and 32 of that Act by Waterford Regional Hospital in the manner in which it behaved towards him from March, 2000 until his employment terminated in June, 2001.
2. BACKGROUND
2.1 The complainant is a British citizen of Indian ethnicity. He was employed by the respondent in a number of capacities (locum and full-time) from 1996. On 1 July, 1999 he commenced working in the hospital’s Microbiology Department as a Registrar under the supervision of Dr. Moloney, Consultant Microbiologist. He alleges that Dr. Moloney treated him differently than his Irish colleagues. In particular, she chastised him unnecessarily and spoke to him in a demeaning fashion, she assigned him a heavy workload, some of which was not appropriate for him to perform and she made comments which he believed to have racist connotations. The complainant further alleges that the respondent failed to initiate any proper/adequate investigation of his complaint when he brought his concerns to its attention. Finally, the complainant alleges that the respondent accused him of retaining social security cheques during a period when he was receiving payment of his salary from the hospital and that such a course would not have been pursued by the respondent if an Irish doctor was in a similar situation. The respondent denies all of the complainant’s allegations.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Office of the Director of Equality Investigations on 15 January, 2001. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties. For a number of reasons, including a change of representation on behalf of the complainant, a hearing of the complaint was not possible until 31 July, 2002. A number of issues emerged at the hearing which required clarification and gave rise to further submissions and correspondence from the parties subsequent to the hearing. Final confirmation that the parties were satisfied that the Equality Officer was in possession of all necessary material from their perspective was received on 12 June, 2003.
……
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 The issues for decision by me is whether or not Waterford Regional Hospital (i) discriminated against Dr. Hazra and (ii) harassed him on grounds of race, within the meaning of section 6 of the Employment Equality Act, 1998 and in contravention of sections 6(1), 8(1) and 32 of that Act in the manner in which it treated him from March, 2000 until he ceased employment with it in June, 2001. In reaching my decision I have taken into account all of the written and oral submissions made by both parties.
6.2 Section 6(1) of the Employment Equality Act, 1998 provides:
“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”.
Section 6(2) of the Act provides, inter alia, the following:
“(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),”.
Section 8(1) of the Act provides:
“In relation to —
(a) access to employment,
(b) conditions of employment, ……..
an employer shall not discriminate against an employee or prospective employee ……..”
Section 15 of the Act provides, inter alia,
“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”.
Section 32 of the Act provides,
“(1) If, at a place where C is employed (in this section referred to as “the workplace”), or otherwise in the course of C’s employment, another individual (“E”) harasses C by reference to the relevant characteristic of C and —
(a) C and E are both employed at that place or by the same employer, …….
then, for the purposes of this Act, the harassment constitutes discrimination by C’s employer, in relation to C’s conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.
(5) For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.”.
6.3 It is commonplace in this jurisdiction that the complainant must, in the first instance, establish facts from which may be presumed that they have suffered less favourable treatment than another person is, has or would be treated. It is only when such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination. This approach has its origins in issues of gender discrimination and is now part of Irish law with the coming into force of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20014. However, Equality Officers have applied this approach in cases on non-gender discrimination and it has also been applied by the Labour Court in Revenue Commissioners v O’Mahony & Othrs5 and it is consistent with the approach contained in the EU Directive implementing the principle of equal treatment between persons irrespective of racial or national origin6. Prima facie evidence has been described as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred”7. That been said, in my opinion section 32 of the Act, which deals with harassment, does not require the complainant to show that he was treated less favourably than a Registrar of a different ethnic origin, rather he has to demonstrate that the treatment complained of was unwelcome to him and could reasonably be regarded as offensive, humiliating or intimidating to him by reference to his ethnicity.
6.4 In my view the complainant’s case falls into two distinct parts. Firstly, his allegations of harassment and less favorable treatment against his immediate superior, Dr. Moloney and secondly, his allegations of discriminatory treatment and harassment against officials in the respondent’s HR Department as regards their behaviour towards him in respect of investigating his complaint and assertions that he withheld social security benefit contrary to agreed procedures. I propose to deal with each part of the complaint separately.
6.5 The complainant submits that the Equality Officer must not look at each alleged incident of harassment by Dr. Moloney in isolation, rather he must assess the impact of the totality of the incidents on the complainant and a subjective approach taken. It cites two UK Employment Appeals Tribunal cases in support of such an approach. In one of those cases Driskell -v- Peninsula Business Services Ltd. and Others8 the Tribunal was assisted in its decision by a blatant discriminatory comment from a male interviewer to a female interviewee the day before the interview, which was the latest in a line of inappropriate incidents between the parties. There is no such clarity in the instant case. The second case Qureshi -v- Victoria University of Manchester9 is more akin to the instant case. The principles in both cases are similar in that they state that the correct approach to take in cases where that is an alleged chain of discriminatory incidents, that the Tribunal should establish the facts of the various incidents and decide whether it can legitimately infer from all of those facts, in addition to all the other circumstances of the case, whether they acts complained of were based on racial factors. This approach has been upheld by the Court of Appeal in the United Kingdom. I would concur with this approach and I have adopted such an approach in this case. In my view it is the role of the Equality Tribunal to establish all of the facts surrounding the allegations and to decide, on balance, whether, individually or collectively, they constitute harassment or discriminatory treatment contrary to the Employment Equality Act, 1998 or that such inferences can be drawn from those findings.
6.6 I note the complainant commenced work in the Microbiology Laboratory in June, 1999 and that he had a normal working relationship with Dr. Moloney at that time. The first occasion he noticed a difference in her attitude towards him was when in returned from a visit to Beaumont Hospital around March, 2001. Other than the incident concerning the hospital infection control policy, there is no dispute between the parties that the list of alleged incidents between Dr. Moloney and the complainant took place. It is the content and context of these interactions which is in dispute. I have no doubt that Dr. Hazra viewed these discussions as unwelcome and traumatic. However, that does not mean that they constitute less favourable treatment, or harassment, of him contrary to the Act.
6.7 Commencing with the discussion between the complainant and Dr. Moloney on his return from Beaumont Hospital, I am satisfied that Dr. Moloney arranged the visit in an effort to provide him with an opportunity to mingle with his peers and avail of learning opportunities. I believe that it would be normal staff management practice to discuss such a visit with a staff member when he returned to the Department and I am prepared to accept, on balance, that the discussion between them was in that context. The complainant has adduced no evidence to demonstrate that he was treated less favourably than another person would have been in the circumstances. In addition, whilst the comments may have been unwelcome to him, I cannot conclude that they constitute harassment of him on grounds of race contrary to the Act. However, notwithstanding my acceptance of Dr. Moloney’s reasons for her actions, I feel it would have been beneficial to all concerned and may have set a different tone to the subsequent working relationship with the complainant had she explained fully and clearly the reasons for the visit early on.
6.8 The complainant contends that his workload was excessive and that he was left for considerable periods unsupervised in the Department. I note the complainant had worked in the hospital from 1996 as both a Locum and Senior House Officer in a number of departments. I believe this experience must have equipped him with the knowledge that hospital departments are busy, stressful environments – a fact that has been the subject of considerable dialogue in the recent past in the industrial relations arena. In my view, it should have been no surprise to him that the Microbiology Department of a large regional hospital with a catchment area of around 400,000 people, would be no different. It is accepted by Dr. Moloney that her duties as a Consultant required her absence from the Microbiology Department on a fairly frequent basis, on average totaling one day a week. She states however, that during these absences the complainant could contact her to discuss any issue which he did not feel competent to deal with – a point which was accepted by Dr. Hazra. I note that prolonged absences by Dr. Moloney from the Department were covered by a locum Consultant in accordance with normal practice. The complainant states that he had expected to be personally supervised by Dr. Moloney at all times. Dr. Moloney states that it is normal for Consultants to be absent from the Department for a variety of reasons and although she was the complainant’s supervisor, she submitted that such supervision implies, in an Irish sense, that she oversee the work of the complainant and be available to deal with queries or issues which were outside his competence. She added that it did not envisage her standing at his side at all times rather it required her to provide an environment in which the complainant could develop his own competencies and she made every effort to fulfil this role and argued that this was also the Medical Council’s understanding of a supervisory role. She added that the complainant was engaged at Registrar level which indicated a level of responsibility and a assumption that he would exercise a degree of clinical autonomy which would not be expected of a Senior House Officer or Intern. I believe that Dr. Moloney’s comments reflect the reality of working life in a large modern hospital whilst the complainant’s present a rather idealistic image. I am of the opinion that whilst such activity undoubtedly placed a heavy burden on the complainant, it was not a consequence of his ethnic origin – the same burden would have been placed on a Registrar of a different nationality or ethnicity. It follows therefore that I do not consider this incident to constitute unlawful discrimination or harassment of the complainant contrary to the Act.
…………….
6.16 As I indicated in paragraph 6.5 above, having examined all of the individual incidents I now consider it necessary to assess the overall impact of the alleged treatment of the complainant in order to establish whether or not cumulatively, they could be regarded as discrimination under the Act. As I have stated above, I am satisfied that the working relationship between the parties became strained as time progressed. I also accept the complainant’s comments that the entire episode was traumatic for him and that he was genuinely afraid to confront Dr. Moloney about his concerns because he felt it would make matters worse for him. However, I find it difficult to understand why an educated individual such as the complainant waited in excess of six months to raise the matter with the hospital’s Head of Human Resources because of such fears, particularly as he contends matters got progressively worse for him as time elapsed, notwithstanding his assertion that he did not know how to pursue the matter, an issue I shall return to later in my Decision. In addition, I note that there were difficulties surrounding the complainant’s time management and record keeping skills which had necessitated discussion between the parties on a number of occasions – a point which was accepted by the complainant during the hearing. Whilst Dr. Moloney’s management and communication skills, in my view, fall short of ideal as regards how she handled matters, I cannot find any evidence to support the complainant’s assertion that he was harassed by her and/or treated less favourably by her on grounds of his race, contrary to the Employment Equality Act, 1998. In fact I note that complainant’s comment in the course of the hearing that until a few days after the “go home” incident (see paragraph 6.12 above) Dr. Moloney had never given him the impression that her behaviour towards him was racially motivated. No clear discriminatory incident which might raise an inference in respect of the other alleged incidents has been established, which is what happened in the Driskell case referred to at paragraph 3.8 above. Having regard to the totality of the alleged incidents and the other circumstances of the case, I cannot hold that they constitute unlawful discrimination or harassment of the complainant contrary to the Act.
6.17 The complainant argues, and it is a point with which I would agree, that there is rarely tangible evidence that discrimination or harassment on grounds of race occurred. An Equality Officer must therefore look to other methods to ensure that such behaviour did not occur. An approach which has emerged in UK as regards allegations of discrimination on grounds of race is that the outcome of the complaint depends on what inferences can be drawn from the facts established by the Tribunal. I have averted to these issues at paragraph 6.5 above. In the preceding paragraphs I have set out my findings as to the primary facts of the case. In each instance, I have found that the respondent has offered an adequate and satisfactory explanation for the treatment complained of. Accordingly, I cannot infer that the alleged treatment constitutes discrimination or harassment of the complainant contrary to the Act. I find therefore, on balance, that the complainant has failed to establish a prima facie case of discrimination or harassment in respect of this element of his complaint.
…………………..
6.20 I shall now deal with the complainant’s allegations that the respondent failed to deal adequately with his complaint. The complainant first notified the respondent of his concerns by way of letter to Mr. Dooley on 6 September, 2000. They subsequently met on 22 September, 2000 to discuss the contents of that letter. In the interim Mr. Dooley copied the complainant’s letter to Dr. Moloney and sought her agreement to have the matter dealt with informally. He put this proposition to the complainant in the course of the meeting on 22 September and it was rejected – the complainant instead asked for the matter to be
investigated formally. The respondent states that in those circumstances it was necessary or it to use the procedures under the South Eastern Health Board’s Anti-Bullying Policy. The respondent states that shortly afterwards, Mr. Dooley was informed by the Irish Hospital Consultant’s Association (IHCA), of which Dr. Moloney was a member, that the allegations against Dr. Moloney could not be investigated under the health board’s procedures. This situation arose because those procedures contained a clause which stipulated that “where nationally or locally agreed procedures already exist for dealing with allegations of misconduct against particular categories of staff, these procedures should continue to apply”.
The IHCA had not been involved in any consultations with the health board about the application of the procedures to its members and in any event, each consultant’s individual contract of employment contained a provision for dealing with complaints against him or her. The respondent adds that at that time the South Eastern Health Board was involved in a High Court case concerning a consultant in another hospital who had questioned the correct procedures to be followed when investigating complaints against consultants. It argues that it was therefore precluded from progressing a formal investigation of Dr. Hazra’s complaint pending the judgement of the High Court, which was not delivered until 27 November, 2001 and that it wrote to the IMO on 12 December, 2000 advising of this.
6.21 I note Mr. Dooley’s comment at the hearing that he had formed an initial opinion on the merits of Dr. Hazra’s complaint after the meeting of 22 September, 2000 and had decided, in accordance with the provisions of Dr. Moloney’s contract of employment, that the complaint was without foundation and it was not necessary therefore to refer the matter to the CEO of the hospital. In making that judgement I believe Mr. Dooley applied part of the very process which the respondent contends it was precluded from operating because of High Court proceedings. I further note that he confirms he did not inform either party of his decision in this regard. Rather, he waited until 12 December, 2000 to write to the IMO in terms which are seriously lacking in clarity. Mr. Dooley also stated in the course of the
hearing that he took the decision not to invoke the procedure in Dr. Moloney’s contract of employment after he became aware of the existence of the High Court proceedings in November, 2000. I find it difficult to reconcile this comment with those above and I am inclined, on balance, to the view that Mr. Dooley took his decision shortly after the meeting with the complainant and that circumstances combined to permit him to put the matter “on hold” when the existence of the High Court proceedings were brought to his attention in November. His actions therefore, denied the complainant any formal avenue to redress other than the legal route. His decision appears to have been taken following minimal discussion with the Health Board Management and without seeking legal advice, which one might expect him to have done in the circumstances. Another factor which appears to have influenced his decision was the comments of Dr. Moloney’s staff association that the procedure contained in her contract of employment was the only avenue he could follow. Having taken this route he neglected to communicate the outcome of his deliberations to the complainant or his representative until the letter of 12 December, 2000, which as I stated above was very unclear. I note Mr. Dooley stated in the course of the hearing that apart from this letter the respondent did not explain the impact of, or reasons for, its decision to the complainant, adding that it assumed the IMO representative would be aware of the existence of the High Court proceedings. I consider the respondent’s approach on this issue to be extremely unsatisfactory and inadequate. It was faced with serious allegations of inappropriate conduct by a consultant in the hospital and had acted swiftly in informing Dr. Moloney of these allegations. Yet almost ten weeks elapsed from the time the complainant met with Mr. Dooley to his correspondence with the IMO. In the interim the respondent had made decisions which affected the matter and it did not communicate these to the complainant. I would like to say, in light of the foregoing, that had the complainant established a prima facie case of discrimination, the respondent’s actions would, in my opinion, fall well short of a satisfactory defence under the Act. The fact that the High Court judgement subsequently found that the mechanism in Dr. Moloney’s contract of employment was the correct one to deal with allegations of inappropriate behaviour etc., does not detract from the inadequacy of the respondent’s actions in this case and might be considered fortuitous in the circumstances.
6.22 Before leaving this particular issue I would like to alert employers that they should be careful as regards how they respond to complaints made against staff members, regardless of their status within the organisation. In the instant case I am satisfied that the respondent was not on notice that the complainant’s case was on the grounds of race until mid/late January, 2001 when it received official ODEI documents/forms from either the complainant or the Equality Officer. This view is supported by the complainant’s evidence in the course of the hearing that he did not inform anybody in the hospital Management that Dr. Moloney’s treatment of him was a result of his ethnicity. Had it been on notice to any extent that the complainant’s race might be a factor, its serious lack of response may be viewed as an element for consideration in determining whether it acted reasonably in accordance with section 32(6) of the Act. At the very least I would suggest where existing formal procedures cannot be utilised, for whatever reason, employers should communicate this to the employee concerned and if appropriate, explore alternative options to resolve the matter.
…………….
6.24 The complainant states that he was unaware of the existence of policies and procedures in the hospital concerning harassment and/or bullying until his IMO representative advised him of this. In response the respondent states that the hospital has had an Anti-Bullying Policy since August, 2000, that it was distributed to Heads of Department for notification to existing staff and it is furnished to all new staff at induction training. I have also examined the respondent’s Employee Handbook and note that it contains a rather basic paragraph on equal opportunities. When faced with allegations of discrimination or harassment under the Employment Equality Act, 1998, employers can avail of the defence that it took reasonable steps to prevent the harassment from occurring in the first instance, or insofar as harassment has occurred, to reverse the effects of same. The application of such a defence is examined in the context of may elements, one of which is a pro-active approach to the operation of anti-discrimination policies. I would suggest that the respondent review its current practices in this regard to assess whether or not it would comply.
6.25 Whilst I consider the manner in which the hospital Management handled the entire situation to be extremely inadequate and unsatisfactory, I cannot conclude that its shortcomings were connected with the complainant’s ethnicity. My comments at paragraph 6.16 above are also relevant to this element of the complainant’s case. Consequently, the complainant has failed to establish a prima facie case of discrimination and harassment in respect of this element of his complaint..
7. DECISION OF THE EQUALITY OFFICER
7.1 I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him, or harassed him on grounds of race contrary to the Employment Equality Act, 1998.”
Qureshi v Victoria University Of Manchester & Anor
[2001] ICR 863
EAT MUMMERY J.
“Ever since the Court of Appeal’s decision in King v. Great Britain China Centre [1992] ICR 526 the Industrial Tribunals and this Tribunal have found an invaluable and frequent source of assistance in the passage in the judgment of Lord Justice Neill on p.528E to 529C where he summarised the principles and guidance extracted from the earlier authorities.
It is worth setting out that passage in full because nothing which we wish to say should be regarded as doubting or diminishing in any way the accuracy, clarity and value of that guidance. Lord Justice Neill stated the position as follows_
“…From these several authorities it is possible, I think, to extract the following principles and guidance,
(1) It is or the applicant who complains of racial discrimination to make out his or her case. Thus, if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that “he or she would not have fitted in”.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with S.65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Health Thames Health Authority v. Noone [1988] ICR 813, 822, “almost common sense”.
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”
In addition to that passage we have also been referred to the following cases: Owen and Briggs v. James [1982] ICR 618; R v. Commission for Racial Equality ex parte Westminster City Council [1984] ICR 770; London Borough of Barking and Dagenham v. Camara [1988] IRLR 273; North West Thames Regional Health Authority v. Noone [1988] 813; Qureshi v. London Borough of Newham [1991] IRLR 264; Chapman v. Simon [1994] IRLR 124 and Leicester University Students Union v. Mahomed [1995] ICR 270.
On the basis of (a) those authorities, (b) the experience of the members of this Tribunal and (c) the experience of the parties, the advisers and the Tribunal in this case, we tentatively add the following observations and thoughts to the guidance in Neill LJ’s judgment in King v. Great Britain China Centre –
(1) The complaint
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. If the applicant fails to prove that the act of which complaint is made occurred, that is the end of the case. The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application. See Chapman v. Simon (supra) at paragraph 33(2) (Balcombe LJ) and paragraph 42 (Peter Gibson LJ). In this case the principal complaints made by Dr Qureshi were the decision of the FRC not to support a recommendation for his promotion to the post of senior lecturer in October 1992 and the decision of the Dean of the Law Faculty in October 1993 not to put his name forward to the APC with a favourable recommendation for promotion to senior lecturer. The considerations of the Tribunal and their decision should, therefore, focus on those complaints and on the issues of fact and law which have to be resolved in order to decide whether the complaints are well founded or not.
(2) The issues
As the Industrial Tribunal have to resolve disputes of fact about what happened and why it happened, it is always important to identify clearly and arrange in proper order the main issues for decision eg,
(a) Did the act complained of actually occur? In some cases there will be a conflict of direct oral evidence. The Tribunal will have to decide who to believe. If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point. If the applicant is believed, has he brought his application in time and, if not, is it just and equitable to extend the time?
(b) If the act complained of occurred in time, was there a difference in race involving the applicant?
(c) If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial racial group in the same, or not materially different, relevant circumstances?
(d) If there was a difference in treatment involving persons of a different race, was that treatment “on racial grounds”? Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent?
In answer to each of these questions the Tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence.
(3) The evidence
As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The Applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The Tribunal must consider the direct oral and documentary evidence available, including the answers to the statutory questionnaire. It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the Tribunal of fact. How can it be kept within reasonable limits? This case is an illustration of the problem. The complaint of racial discrimination is usually sparked by a core concern of the applicant: in this case his failure to obtain support and recommendations for his promotion to a senior lecturer in the Faculty of Law. Dr Qureshi relied extensively on circumstantial evidence that there was a racial ground for the acts and decisions he complained about. The circumstantial evidence included incidents ranging over a period of nearly six years, from 1988 to 1994. The incidents relied on by him ante-date, accompany and post-date the alleged acts of racial discrimination and victimisation particularised in his 1993 and 1994 applications. It was necessary for the Tribunal to find the facts relating to those incidents. They are facts (evidentiary facts) relied upon as evidence relevant to a crucial fact in issue namely, whether the acts and decisions complained of in the proceedings were discriminatory “on racial grounds”. The function of the Tribunal in relation to that evidence was therefore two-fold: first, to establish what the facts were on the various incidents alleged by Dr Qureshi and, secondly, whether the Tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of. The temptation for the complainant and his advisers, in these circumstances, is to introduce into the case as many items as possible as material from which the Industrial Tribunal might make an inference that “racial grounds” are established. The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inference of racial grounds eg, non-racial explanations for his acts and decisions. The result of this exercise is that the parties and their advisers may confuse each other (and the Tribunal) as to what the Tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background. It is a legitimate comment that in some cases of race discrimination so much background material of marginal relevance is introduced that focus on the foreground is obscured, even eclipsed. In practical terms this may lead the case to run on and on for many days or weeks. In the experience of this Tribunal, the longest cases heard in the Industrial Tribunals are cases of racial discrimination.
(4) Inferences
The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence. In Chapman v. Simon (supra) at paragraph 43 Peter Gibson LJ gave a timely reminder of the importance of having a factual basis for making inferences. He said –
“…Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the Tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion.” (See also Balcombe LJ at para. 33(3)
In the present case, it was necessary for the Tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on “racial grounds” or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to inferences and then for the Tribunal to look at the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on “racial grounds”. The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference. The Tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision.
Conclusion
The additional comments are intended to provide some assistance to the Tribunal to whom this case is remitted (and to other Tribunals) in deciding what are, in our view, the most difficult kind of case which Industrial Tribunals have to decide. The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The complainant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing. The accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others. In our experience, the Industrial Tribunals discharge this delicate, difficult function conscientiously and carefully. It should not be regarded as a criticism on the Chairman and members of this Tribunal that we have found their lengthy, conscientious and detailed decision, taken after many hearing days and many hours of deliberation, to contain an error of law.”
Ms A v A Gym
DEC-E2004-011
“1. DISPUTE
1.1 This dispute concerns a claim by a complainant that she was discriminated against by her employer on the ground of gender contrary to the provisions of the Employment Equality Act, 1998 when she was sexually harassed by a work colleague. In accordance with the Equality Tribunal’s normal practice in claims of sexual harassment, no names have been given in this decision.
1.2 The Equality Authority, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 28 May 2002 under the Employment Equality Act, 1998. The Authority advised that the complainant would be represented by solicitors acting on its instructions, and Benen Fahy Associates, Solicitors subsequently advised that they had been instructed. In accordance with her powers under section 75 of that Act, the Director delegated the case on 23 July 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 11 April 2003. Subsequent correspondence with the parties concluded on 3 September 2003.
…….
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the ground of gender contrary to the provisions of the Employment Equality Act, 1998 in that she was sexually harassed within the meaning of the Act and the respondent failed to take the necessary steps to establish a defence. Section 18 (1) of the Act provides that “A” and “B” represent two persons of opposite sex, and Section 23 provides that:
(1) If, at a place where A is employed (in this section referred to as “the workplace”), or otherwise in the course of A’s employment, B sexually harasses A and…
(a) A and B are both employed at that place or by the same employer… then, for the purposes of this Act, the sexual harassment constitutes discrimination by A’s employer, on the gender ground, in relation to A’s conditions of employment.
(3) For the purposes of this Act —
(a) any act of physical intimacy by B towards A,… shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A..
(5) If, as a result of any act or conduct of B, another person (“the Employer”) who is A’s employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable…
(b) to prevent B from sexually harassing A…
4.3 The procedural rule applied in the case of gender discrimination is that prescribed by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). The Labour Court, in applying this rule in a recent case said this meant that “…where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities.” (Customer Perception Ltd and Leydon [EED0317]).
4.4 Some facts in the claim are not in dispute. The complainant never made a complaint regarding the various comments allegedly made by Mr B. On 4 January 2002, she made a verbal and written complaint to the Manager that she had been slapped by Mr B two days earlier. She alleged the incident had occurred in the Manager’s office and had been witnessed by Mr C. Meetings took place between the complainant and the Manager to discuss the complaint, but the complainant never resumed work. The Manager also discussed the allegation with Mr B, who denied it had occurred, and with Mr C, who denied he had witnessed any such incident.
4.5 As an initial point, I should clarify that the complainant’s comments about Mr B’s reputation are hearsay, so I am confining my investigation to consideration of the incident alleged to have occurred on 2 January 2002 and its consequences. At the hearing, I was provided with the written complaint of the complainant and the responding statements of Mr B and Mr C. The complainant’s statement said quite clearly that she had been “shocked and humiliated by a sudden and robust slap to my bottom from [Mr B] in the presence of [Mr C]”. Mr B’s statement said that he “made no inappropriate remark to offend any male or female colleagues”. Mr C’s statement said he “did not witness any unprofessional behaviour by [Mr B] to [the complainant]”. The discrepancy between the matter actually complained of and the responses is striking.
4.6 Mr B, who was a witness at the hearing, denied emphatically that he had ever slapped the complainant. He also asserted that he had not seen her written complaint and had been under the impression that she had alleged he had made some sort of offensive remark. Mr C, also a witness, said that his statement arose because he had been asked by the Manager if he had seen anything of the nature of sexual harassment, and he also had not seen the written complaint. He said that he had no memory of anything of that nature, and could not recall any tension or anger in the Manager’s office that night.
4.7 It is always difficult to make choices between contradictory evidence of witnesses. In the first place, Mr C was not a satisfactory witness, and appeared to equivocate about what he had and had not witnessed. Both the complainant and Mr B, on the other hand, were very clear and emphatic in their evidence. The complainant insisted the incident occurred, and Mr B insisted it did not. On the balance of probabilities, taking into account the fact that the complainant made a contemporaneous written complaint and that her description of events remained consistent throughout, I found her evidence more compelling. I am satisfied therefore that the incident of sexual harassment occurred.
4.8 The respondent at the hearing suggested that both Mr B and Mr C, both of whom were its own witnesses, were confused as to when they had become aware of the specific allegation of the complainant. Even if it were the case that they had been shown the written complaint by the Manager, as she insisted, she was unable to give me any explanation as to why she accepted their non-specific statements as adequate responses to the complainant’s very specific complaint.
4.9 What is clear is that the Manager did not know how to deal with an allegation of sexual harassment. There was no internal grievance procedure or code of practice on such a matter, and the respondent had not introduced any procedures to comply with its responsibilities under the Employment Equality Act, 1998. The 1998 Act had commenced on 18 October 1999, which was well over two years prior to the incident complained of. In the circumstances, I cannot find that the respondent took any such steps as were reasonably practicable, in the terms of section 23 (5), to provide it with a defence to the finding of discrimination on the ground of gender, and is therefore vicariously liable for the sexual harassment in accordance with section 23 (1).
5. DECISION
5.1 Based on the foregoing, I find that respondent discriminated against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998, when she was sexually harassed by a work colleague.
5.2 I hereby order that the respondent:
(i) pay the complainant the sum of €5,000 in compensation for the effects of the discrimination; and
(ii) introduce a policy to deal with complaints of sexual harassment, with particular reference to the provisions of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI No 78 of 2002).”
A Worker v A Hotel
DEC-E2009-062
“Claim
The case concerns a claim by a worker that a hotel discriminated against her on the ground of gender contrary to Section(s) 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of not preventing her sexual harassment by an identified male customer, and discriminatorily dismissing her by forcing her resignation due to not responding effectively to her complaints in this matter.
……
Sexual Harassment
In relation to the complainant’s claim of harassment, I need to consider three different aspects of the evidence:
(a) Whether the complainant has established on the balance of probability that she was sexually harassed in any of the incidents he described in her evidence. This includes an evaluation as to whether the events the complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of sexual harassment.
(b) Whether the respondent is vicariously liable for the harassment pursuant to S. 15 of the Acts.
(c) Whether the respondent took reasonable action to prevent harassment occurring in the workplace. This includes considering the extent to which the respondent was aware of the complainant’s experiences, to enable it to deal with the complainant’s complaint of harassment, and if it was aware, whether it took appropriate action to enable it to rely on the defence.
“Sexual Harassment” is defined in S. 14A(7)(a) 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 dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. S. 14A(7)(b) further states that such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
S.14A(1)(a)(iii) of the Acts specifies that an employer’s liability for harassment and sexual harassment can also extend to clients, customers or other business contacts of the employer, where the circumstances of the harassment are such that the employer ought reasonably have taken steps to prevent it. In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
In making my decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
The complainant is a Spanish national who came to Ireland in 2002, initially to study English. By the time she entered the respondent’s employment in May 2005, her English was still not very good. While I found the complainant’s English to be generally good during the hearing of the complaint, she still struggled with some of the more complex legal language. I therefore find her evidence about the standard of her English at the material time to be credible. She worked for the respondent as a waitress. She stated that she did not receive an employee handbook, any policy on bullying or harassment, and no training in these matters. The representative of the respondent confirmed that the respondent did not have a policy to prevent harassment or sexual harassment at the material time, and did not train its staff on this matter.
With regard to the actual incident that gave rise to the complaint, the evidence between the parties differs only very slightly, and only in points that are not material to the case. It is the complainant’s evidence that on 13 November 2005, she was working in the complainant’s kitchen preparing breakfast. It was 7am. Present in the kitchen with her were the cook, the night porter, and a waitress colleague. The complainant stated that as she was on her way from the cool room to the work top with a pack of milk, she heard someone speak very loudly and in an agitated way. She saw a man whom she did not recognise who appeared intoxicated and who, as he approached her, gave off a strong smell of alcohol, smoke and body odour. The man addressed the complainant, and in an effort to be polite, the complainant answered him. The man then moved behind the complainant and, in the evidence of the complainant, wrapped his arms around her chest.
The complainant then wriggled to break free, turned around and slapped him in the face with the unscrewed top of the milk bottle still in her hand. She scratched his face with her slap. She shouted very loudly: “Don’t touch me!”
The night porter, who stood close by, said something to the man, who appeared known to him, which the complainant did not understand. The night porter then asked the man to leave the kitchen. According to the complainant, the man did so shouting, although she could not understand what he said. The complainant stated that she was trembling and very frightened, and that likewise, her waitress colleague stood in a corner of the room, shocked and frightened.
Mr X., the alleged harasser, appeared before the Tribunal to give evidence. It was his evidence that he came into the kitchen to get a cup of tea, as he had done “a thousand times before”. He was friendly with Mr Y., the night porter, and stated that he was present in the hotel approximately four times per week, as he lived right next to it. On the night and morning in question, he stated in cross-examination that he had been at a friend’s house from 10pm the night before, then entered the hotel at 3am, to have a few drinks and a conversation with Mr Y. He accepted that he had drink taken when the incident occurred. He stated that he did step behind the complainant and then touched her, but insisted that he placed both of his hands on her hips and that this was meant to be a greeting. Under cross-examination, he maintained that he would greet a male stranger the same way. He stated that he was not aware that he caused offence, but that this became clear to him when the complainant slapped him in the face. He stated that he apologised profusely to the complainant when he realised that his conduct had been unwelcome. He confirmed that the night porter asked him to leave the kitchen.
The night porter, Mr Y., confirmed that he had known Mr X. “for ages”, and that Mr X. was a long time friend of both himself and the hotel’s general manager, Mr. A. He confirmed that Mr X. had been drinking in the hotel in the night in question and also that he asked Mr X. to leave the kitchen after the incident. He confirmed in cross-examination that it was one of his duties to keep guests of the hotel out of the kitchen. When asked whether he was reprimanded for not doing so in the instant case, he replied “No”.
The hotel’s general manager, Mr. A., also confirmed in evidence that he and Mr X. had been personal friends since they were about 13 years old. He confirmed that it would not be unusual for Mr X. to come into the hotel kitchen for “a cup of tea”. He confirmed that during night hours, Mr. Y as the night porter would be responsible for security matters. He accepted in cross-examination that there were no signs on the kitchen doors indicating that persons not belonging to the staff were not permitted to enter, and that the hotel did not have a policy to deal with instances of harassment or sexual harassment.
Mention was further made by both parties regarding CCTV footage that shows the incident in question. There was no dispute between the parties as to what is shown on the tape, which is Mr X. stepping behind the complainant, moving his arms forward, and later the complainant turning around and slapping him. Due to the camera angle, and the fact that Mr X. is significantly bigger than the complainant, it was not possible, according to both parties, to see exactly where Mr X. touched the complainant. I understand that the tape has been handed over to the Gardaí for investigation, but for the purposes of my investigation, I am satisfied with this undisputed description of what the footage contains.
I am satisfied, based on the available evidence, that the way Mr X. approached and then physically touched the complainant constitutes sexual harassment within the meaning of S. 14(7) of the Acts. I do not consider the difference in evidence as to which body part of the complainant’s he touched to be material. Even if Mr X. placed both of his hands on the complainant’s hips while approaching her from behind, as per his own admission, I consider this to be a gesture of an unequivocally sexual nature that cannot possibly be interpreted as a greeting as Mr X. has sought to argue, and I am satisfied that this behaviour was both offensive and intimidating to the complainant. I also wish to state that on the question as to whether Mr X. proffered an apology to the complainant at this point, that I prefer the complainant’s evidence that he left the kitchen shouting.
I am further satisfied that the respondent is vicariously liable for Mr X.’s conduct pursuant to S. 15 of the Acts, since it is undisputed that at the material time Mr X. was a customer of the hotel within the meaning of S. 14A(1)(a)(iii) of the Acts, and, further to S. 14A(1)(a)(iii), I am satisfied that the respondent had not taken any steps to prevent it. Not only did the respondent not have a policy in place to deal with such incidents, but did not even adhere to the widespread practice of mounting signs on the kitchen entrances to indicate that non-staff were not permitted access, which could otherwise be considered as a basic step taken to prevent the harassment of staff in the kitchen area where the incident occurred. Furthermore, the night porter, despite having express responsibility for security matters during the time in question, stood in the immediate vicinity of the complainant yet did nothing to stop Mr X. from approaching her, and only requested that the harasser leave the kitchen after the incident.
Discriminatory Constructive Dismissal
I now turn to how the respondent handled the incident, which forms part of the complainant’s complaint of discriminatory constructive dismissal.
…………….
I am also satisfied that no meaningful investigation of the complainant’s complaint of sexual harassment took place, and that the respondent, without any investigation, formed the view that no sexual harassment of the complainant had taken place. It further seems highly likely to me that the respondent was influenced in this matter by the several decades of friendship that existed between Mr A., Mr X and Mr Y prior to the occurrence of the complainant’s sexual harassment.
I note that the respondent’s ways of addressing the matter showed no concern for the complainant’s welfare, which might be considered a mitigating factor in favour of the respondent, in evaluating the complainant’s case for constructive dismissal. In the case on hand, however, I am satisfied that the respondent’s conduct following the original incident served to aggravate the complainant’s feelings of intimidation and distress. I am further satisfied that the complainant did not receive sick pay from the respondent, as would have been the conditions of her contract of employment, and that Mr A.’s evidence in this matter is wrong. I do not accept that the fact that a Garda investigation into the matter of the complainant’s sexual harassment was pending obviated the respondent’s responsibilities under its duty of care towards the complainant.
Turning then, to the complainant’s contention that the respondent’s actions in this matter left her no option but to resign, I first note that S. 2(1) of the Acts specifies that
“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be constructed accordingly.
The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee’s grievance or complaint.
With regard to the respondent’s actions following the sexual harassment that the complainant was subjected to, as outlined in paragraphs4.17 to 4.29 above, I do not accept that they constitute a reasonable response to the complainant’s complaint. On the contrary, I note again that they aggravated the complainant’s feelings of intimidation and distress, and accept that they were detrimental to the complainant’s health to the point where she needed to first take sick leave, and ultimately felt forced to resign from the respondent’s employment.
I therefore find that the complainant’s employment with the respondent came to an end in circumstances amounting to dismissal within the meaning of S. 2(1) of the Act, and that her dismissal occurred on the ground of the sexual harassment she experienced while in the respondent’s employment. Accordingly, I find that the respondent discriminatorily dismissed the complainant contrary to S. 8(6) of the Acts.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent discriminated against the complainant in relation to her conditions of employment contrary to S. 8(1) of the Acts by not taking reasonable and practicable steps to prevent her sexual harassment contrary to S. 14A(7) of the Acts;
(ii) The respondent did discriminatorily dismiss the complainant contrary to S. 8(6) of Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent
(i) pay the complainant €30,000 in compensation for the discrimination and discriminatory dismissal.
This award is in recognition of the aggravating and stressful experience of the complainant due to the conduct of the respondent; first with regard to her experience of sexual harassment, and then with how the respondent handled the matter subsequently. It is not in the nature of pay and therefore not subject to tax.
(ii) I further order that the respondent adopt a policy to prevent harassment and sexual harassment in all hotels under the respondent’s management, with immediate effect.”
Joanna Fortune v CARI
DEC-E2009-052
“1. Claim
The case concerns a claim by Ms Joanna Fortune that Children at Risk in Ireland (CARI), discriminated against her on the ground of age contrary to Sections 6(2)(f) of the Employment Equality Acts 1998 to 2004, in permitting her to be harassed contrary to S. 14A of the Acts, by denying her promotion contrary to S. 8(1)(d) of the Acts, and by discriminatorily dismissing her contrary to S. 8(6)(c) of the Acts.
Background
The complainant claims that a colleague harassed her on grounds of age by questioning her professional and life experience as relevant to her work; that the same colleague undermined her success at promotion to a more senior position within the respondent organisation by raising the same points with senior management; and that the respondent discriminatorily dismissed her.
The respondent contends that the promotion complaint is out of time under the Acts; that the complainant does not show a prima facie case of harassment on grounds of age; and that the complainant resigned from the respondent’s employment of her own free will and was not discriminatorily dismissed.
……
Conclusions of the Equality Officer
The issues for decision in this case are:
(a) Is the complainant’s claim with regard to discrimination in access to promotion in time pursuant to the provisions of S. 77(5) of the Acts? If so, was the complainant discriminated against in access to promotion on the ground of age, contrary to S. 8(1)(d) of the Acts?
(b) Did the respondent discriminate against the complainant on grounds of age in her terms and conditions of employment by not preventing her harassment by a colleague on this ground, pursuant to S. 14A(7) of the Acts?
(c) Did the respondent discriminatorily dismiss the complainant on the ground of age contrary to S. 8(6)(c) of the Acts?
In relation to the complainant claim of harassment, I need to consider three different aspects of the evidence:
(d) Whether the complainant has established on the balance of probability that she was harassed in any of the incidents she describes in her evidence. This includes an evaluation as to whether the events the complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment, and whether they were linked to the complainant’s age.
(e) Whether the respondent is vicariously liable for the harassment pursuant to S. 15 of the Acts.
(f) Whether the respondent took reasonable action to prevent harassment occurring in the workplace. This includes considering the extent to which the respondent was aware of the complainant’s experiences, to enable it to deal with the complainant’s complaint of harassment, and if it was aware, whether it took appropriate action to enable it to rely on the defence.
“Harassment” is defined in S. 14A(7)(a) of the Acts as any form of conduct related to any of the discriminatory grounds being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. S. 14A(7)(b) further states that such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
S. 14A(2) of the Acts states that it shall be a defence for an employer to prove that the employer took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim. In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
In making my decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
In the case on hand, the complainant’s allegation of harassment and her complaint of discrimination in access to promotion are linked through the person of the alleged harasser, who, it was submitted, intervened with one of the members of the interview board against the complainant’s candidature. I will therefore start by examining the complainant’s complaint of harassment, before considering her complaint of discrimination in access to promotion, and whether I have jurisdiction to investigate this matter.
Harassment
The complainant began working as a psychotherapist with the respondent organisation in May 2004. She was instructed to work with an older colleague, Ms. A. The complainant stated in evidence that shortly after she started work, and regularly afterwards, Ms. A. would comment on the complainant’s lack of client experience, lack of years of clinical practice and clinical hours prior to accreditation and general life experience. According to the complainant, Ms A. also stated that in her opinion, psychotherapy training courses should have a high intake age of over 30 years of age to ensure graduates had the necessary life experience, and that she had previously known a young therapist who was unable to cope with her caseload due to lack of life experience and subsequently killed herself. The complainant, who was in her twenties at the time, understood this to be a criticism of her own age and experience, and states that when Ms A made that statement, she looked directly at the complainant. The complainant further stated that Ms. A. repeated these statements to her on a fortnightly basis throughout their working relationship. The complainant states that if Ms A had wanted to make her opinion known on these matters, repeating same again and again would not have been necessary. In response to a direct question, the complainant stressed that her perceived lack of life experience was Ms A.’s main point of criticism.
The complainant also stated that Ms A. occasionally embarrassed her in front of clients, by referring to her as a “little girl”, or emphasising her own parent status in meetings with parents, in the presence of the complainant, by making statements like: “As a parent, I understand”. The complainant stated that she felt undermined by these statements, and it was her contention that it was Ms A.’s intent to make her feel undermined.
The complainant’s evidence was not challenged by the respondent. Ms A. was not present at the hearing of the complaint to give evidence.
From the above evidence, I am satisfied that the complainant has established a prima facie case of harassment on the ground of age. Ms A.’s constant references to “life experience” and the connection she made in her statements to the complainant that trainee therapists should be over 30 years of age to ensure sufficient life experience make it clear that Ms A. took issue with the complainant’s relative youth. I also find that being called “little girl” in front of clients was indeed humiliating and undermined the complainant’s dignity. I am satisfied that these statements had the effect of violating the complainant’s dignity in the workplace and created a hostile environment in her working relationship with Ms. A.
I now turn to the question whether the respondent, pursuant to S. 14A(2) of the Acts, “took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim.” As noted above, in the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
The respondent’s Director, Ms B., stated in evidence that the respondent did not have a policy to prevent bullying and harassment of staff at the material time, only a grievance procedure that was a single page document. Ms B. further stated that she was not aware of the Employment Equality Act 1998 (Code of Practice)(Harassment) Order, S.I. 78 of 2002, which was in force when the complainant’s harassment occurred. A policy was launched in June 05, partly in response to the complainant’s harassment being noted by staff and management, and was taken from the policies of “other organisations, unions and IBEC”, according to Ms. B.
Bringing in a policy in response to the situation that gave rise to the case on hand cannot be interpreted as taking reasonably practical steps to prevent situations of harassment from arising, especially since the promulgation of S.I .78 of 2002 pre-dates the events of the case by some two years. I therefore find that the defence of S. 14A(2) does not avail the respondent.
I further note that when the complainant did make a formal complaint to the respondent in August 2005, following the launch of the policy, that the investigation of her complaint was not handled well. Ms B. stated as much in her direct evidence. The sequence of events is of importance for the complainant’s complaint of discriminatory constructive dismissal, and I will therefore refer to it in detail. The respondent’s investigation into the complainant’s complaint of harassment unfolded as follows:
The complainant made a complaint to her manager about her situation in August 2005. On 2 September, she was informed that a formal investigation would follow, as recorded in meeting minutes submitted in evidence. On 22 September, it was communicated to the complainant that senior management would prefer an informal resolution to the matter, notwithstanding the fact that efforts to resolve things informally had been documented since May 2005 without result. On 29 September 2005, the complainant was told that Ms C., a member of the senior management team, would investigate her complaint, and was asked to submit a written complaint. The complainant did so on 14 October. This document was also submitted in evidence. I prefer the complainant’s evidence in this matter and am satisfied that the respondent was notified of the complainant’s request for a formal investigation of her complaint earlier than 15 November 2005, as stated in the respondent’s written submission (see para4.2) above.
Following numerous queries to senior management, she was informed on 7 December 2005 that Dr X., an independent arbitrator and investigator from outside the organisation would take over the investigation from Ms. C.
However, Ms. A.’s union representative objected to Dr. X. on the basis that the terms of reference of his investigation had not been agreed with Ms. A.s trade union prior to his appointment. Subsequently, on 8 February 2006, Dr X. resigned from the investigation. On 10 February, the complainant sent an email to Ms B., expressing her severe disappointment at the fact that the investigation into her complaint had collapsed yet again. On 21 February 2006, the complainant resigned from her employment with the respondent, to be effective 24 March 2006.
Another investigator, Mr Y., was appointed by Ms B. in May 2006, and he eventually completed his investigation in October 2006. His report was inconclusive, due to the fact that both the complainant and Ms A. were no longer working for the respondent at that stage, and had withdrawn their cooperation with the investigation.
I will revert to this evidence when considering the complainant’s case of discriminatory dismissal. However, in the context of her complaint of harassment, I find that the respondent’s haphazard efforts at conducting an investigation into her complaint cannot be considered a mitigating factor in its liability for the complainant’s harassment.
Access to Promotion
Before turning to the complainant’s complaint of dismissal, I propose to examine her complaint of access to promotion, and whether I have jurisdiction to investigate it. As noted in paragraph 5.6above, this part of the case is closely linked to the complainant’s harassment case.
In October 2004, the respondent sought to fill the position of Head of Therapy. The complainant stated that she was invited to apply, and that together with one outside candidate, she was shortlisted for final interview. However, she learned in March 2006 from a colleague, Ms E., that Ms A had approached her, Ms E., and another colleague, at the time of the competition stating that she felt the complainant was too young and inexperienced to be Head of Therapy, and that she, Ms. A., would not work with the complainant if she was appointed to the position. Ms A suggested to Ms E. to approach the respondent’s clinical director, Dr. F., to relate these objections to him. Ms E. confirmed in direct evidence that she had been approached in this way by Ms. A., but that she had refused to participate in this intervention.
The respondent’s Director, Ms. B., also confirmed in direct evidence that Dr F. had been approached by Ms A. prior to the final interview and that she had stated to him that she felt the complainant was too young and inexperienced for such a senior position, and that Dr F. had shared the details of the relevant telephone conversation with her. Ms B. was also a member of the interview board for the final interview.
I have no doubt that this intervention by Ms. A., directed at a senior manager in the respondent organisation, constitutes harassment of the complainant on the ground of age. A direct intervention with senior management to influence a worker’s chances for promotion for reasons directly and expressly connected to a protected ground does violate a person’s dignity (since it is not connected to the person’s potential ability to do the job) and must count as conduct that has the purpose of creating a hostile environment for that person, even if the person affected remains unaware of such conduct until some later time.
Since Ms A.s attempt to influence the outcome of the competition to the disadvantage of the complainant forms part of her harassment of the complainant on the ground of age, that is, was part of a chain of events that was ongoing until the complainant resigned from the respondent’s employment, I find that pursuant to S. 77(6A), I have jurisdiction to investigate complainant’s complaint of lack of access to promotion on the ground of age.
In my examination of the relevant evidence, I follow the decision of the High Court in Mary Helen Davis v. Dublin Institute of Technology [1999 No. 493SpCt5], where Quirke J held that a
gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation of the type referred to in Zafar (supra). A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates “together with” a gender difference may give rise to such a requirement.
As already noted, the complainant’s age was at issue in the selection process following Ms A.s intervention. I therefore propose to examine the qualifications of the two candidates who were called to the final interview, to see whether a significant difference in qualification exists in favour of the complainant.
The complainant had obtained a B.A. in Psychoanalysis in 2000, and an M.A. Honours degree in Clinical Psychotherapy in 2002. At the time of the interview, she had studied for a qualification in play therapy for approximately four months. In terms of professional experience, she had worked first as a Children Consultation Officer, and subsequently as Manager of the Children Consultation Unit with a national children’s organisation, before taking up employment with the respondent in May 2004. The complainant confirmed in evidence that her employment with the respondent organisation was her first role as a psychotherapist.
The successful candidate had obtained a B.A. in psychology in 1992, an M.S. degree in Marriage, Family and Child counselling in 1994, and been licensed as a family therapist in 2002. Her professional experience prior to her application with respondent included four years in a management role in a psychiatric outpatient service that was part of a community mental health programme, employment as a group therapist in a family support centre, a role as adjunct faculty member at the university she had graduated from, a role as care coordinator in a psychiatric outpatient service different from the service above, a role as mental health rehabilitation specialist in a supported housing programme and two roles as trainee therapist in two different mental health programmes.
From the CV’s of the candidates as summarised above, I am satisfied that a significant difference in qualifications in favour of the complainant does not arise with regard to the competition under investigation, and that therefore she had not established a prima facie case of discrimination in access to promotion pursuant to S. 8(1) of the Acts. I also wish to state that I did not find any evidence of discrimination against the complainant by members of the interview board.
Discriminatory Dismissal
It is the complainant’s contention that her resignation from the respondent’s employment constitutes constructive dismissal. She maintains that the drawn out efforts to first find an informal resolution to Ms. A.s harassment of her, and then the respondent’s haphazard attempts to investigate the matter, left her with no option but to resign her position. She submitted that by the time she handed in her resignation, she was at “breaking point” from the stress the situation was causing her. She emphasised in particular that during all this time, she was asked to continue to work with Ms. A. as part of a team. The respondent confirmed this fact, stating that due to the small size of the organisation, it was not possible to assign the complainant to different duties.
S. 2(1) of the Acts specifies that
“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be constructed accordingly.
The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee’s grievance or complaint.
I am satisfied that regardless of the fact that the respondent did not have a policy in place to deal with cases of harassment, the complainant’s situation had been noted by her immediate managers from May 2005 at the very latest. A policy was launched in response to the situation that had arisen between the complainant and Ms. A. The complainant then availed of the opportunity to raise a formal complaint. I am satisfied that the complainant complied promptly with all requests made to her in the course of the investigation. However, significant delays occurred on the respondent’s side, mostly due to difficulties in securing Ms. A.’s cooperation with the investigative process. Furthermore, changes in the investigative process, as set out in paragraphs 5.15to 5.18above, occurred, for which the complainant was not responsible, and it has not been suggested by the respondent that she would have been.
I am satisfied that the experience of continuing harassment over the course of nearly two years, and the continuing requirement to work with her harasser placed considerable stress on the complainant. I am further satisfied that the drawn-out, haphazard, start-and-stop manner in which the respondent attempted to deal with her situation placed further stress on her, and I accept the complainant’s evidence that the reason she resigned her employment with the respondent was because she felt herself to be at “breaking point”.
With regard to the respondent’s actions in this matter, I do not accept that they constitute a reasonable response to the complainant’s complaint. It has been the respondent’s argument that the regrettable delays and false starts in investigating the matter occurred because nobody in the organisation had experience in handling such a process. However, there is nothing that would have prevented the respondent from obtaining comprehensive advice on the technical aspects of investigating a complaint of harassment and then following it within a reasonable time frame.
I therefore find that the complainant’s employment with the respondent came to an end in circumstances amounting to dismissal within the meaning of S. 2(1) of the Act, and that her dismissal occurred on the ground of the harassment she experienced while in the respondent’s employment. Accordingly, I find that the respondent discriminatorily dismissed the complainant contrary to S. 8(6) of the Acts.
Decision
Based on all of the foregoing, I find that pursuant to S. 79(6) of the Acts that
(i) The respondent discriminated against the complainant in relation to her conditions of employment contrary to S. 8(1) of the Acts by not taking reasonable and practicable steps to prevent her harassment on ground of age contrary to S. 14A(7) of the Acts;
(ii) The respondent did not discriminate against the complainant in relation to access to promotion contrary to S. 8(1) of the Acts and
(iii) The respondent did discriminatorily dismiss the complainant contrary to S. 8(6)of Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent
(i) Pay the complainant € 35,000 in compensation for the harassment endured and the constructive dismissal that resulted from it. This award takes into account the fact that the harassment persisted for nearly two years, that the respondent had no policy to prevent its occurrence, and that the respondent’s belated attempts in addressing the situation were so inept that they compounded the complainant’s distress, leaving her no option but to resign her employment.
This award is in compensation for the distress experienced by the complainant in relation to the above matter, and is not in the nature of pay, and therefore not subject to tax.”
Gabriele Piazza -v- The Clarion Hotel
DEC-E2004-033
“1. CLAIM
The case concerns a claim by Mr. Gabriele Piazza that the Clarion Hotel (IFSC) directly discriminated against him on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 and in contravention of section 8 and 2 of the Act in relation to his conditions of employment.
2. BACKGROUND
2.1 The complainant claimed that he was harassed on the sexual orientation ground in relation to his conditions of employment, in particular on three occasions. The respondent did not dispute that an incident in relation to e-mails as alleged by the complainant occurred or that a reference was made to the complainant’s sexual orientation on 14 October 2001. It disputed that a third comment was made in relation to the complainant and submitted that it was made in relation to other persons. The respondent carried out an internal investigation into complaints made by the complainant before he left employment with the respondent. The complainant was subsequently informed that it was the respondent’s belief that there was no intent, desire or deliberate attempt by any member of the respondent’s team to offend him or the nature of his sexual orientation.
……
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the sexual orientation ground. I will consider whether the respondent directly discriminated against the complainant on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 and in contravention of section 8 and 32 of the Act in relation to his conditions of employment. I must consider (i) whether the complainant was harassed on the sexual orientation ground. If I find that the complainant was so harassed, I must then consider (ii) whether the complainant’s employer is vicariously liable for the harassment and in the event that it is liable, consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace. In this case, I will also consider the manner in which the respondent dealt with the complainant’s complaint of harassment. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Establishing a prima facie case
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“…. “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.3 More recently, the Labour Court has stated in relation to the burden of proof:
“It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.”2
5.4 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the sexual orientation ground. Section 6(1) of the Employment Equality Act, 1998 provides that:
“Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
5.5 Part IV of the Employment Equality Act, 1998 deals, inter alia, with harassment on eight different grounds. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Section 32(1) provides, inter alia, that where an employee (E) harasses another employee (C) by reference to the relevant characteristic of C, i.e. on one of the grounds, at the place of employment or otherwise in the course of the employment of the person harassed, the harassment constitutes discrimination by the victim’s employer in relation to the employee’s conditions of employment. Section 32(5) provides that:
“For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.”
It is clearly the effect and intention of the Employment Equality Act, 1998 that employees are entitled to expect freedom from being harassed at work on the sexual orientation ground by gestures, words and written material.
5.6 The complainant in his letter of 13 April 2004 clarified that there were three incidents of harassment and I shall deal with them in chronological order. The first relates to the three e-mails, which were sent from Mr. S (the Restaurant Manager) to Ms. H (the Human Resources Manager). One of the e-mails is dated 30 September 2001 and refers to the complainant as “just a bloody woman ……”. I consider that the e-mail constituted harassment of the complainant, as it was unwelcome to him and could reasonably be regarded, in relation to his sexual orientation as offensive, humiliating or intimidating to him. I find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to that allegation. I do not find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to the other two e-mails which refer to making the complainant redundant and the complainant’s back injury.
5.7 The next incident referred to was on 14 October 2001. The complainant alleges that on that date, the Kitchen Steward called him a “bastard, gay bastard”. It is not disputed by the respondent that a variation of the comment (“queer bastard”) was made to the complainant on that date. I consider that the comment made constituted harassment of the complainant as it was unwelcome to him and could reasonably be regarded, in relation to his sexual orientation as offensive, humiliating or intimidating to him. I therefore, find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to that allegation. The next incident referred to by the complainant was on 26 October 2001. He alleges that Mr. MS made a comment of a sexual nature about him which he found offensive and degrading. He alleges that Mr. MS stated to a colleague Mr. SC “You want to fuck Gabriele”. It is unclear whether the comment was in the nature of a question.
5.8 The respondent provided minutes of the various meetings it held with members of staff following the complainant’s complaint. I am conscious of the amount of weight that can be attached to such notes given that they are the respondent’s minutes and are not agreed minutes. At the hearing, the complainant stated that he agreed with the minutes of the meetings held with him. I note that in the minutes of the interview conducted with Mr. MS who was the person alleged to have made the comment, he stated that he was having a conversation with Mr. SC about three females who were staying with Mr. SC and he asked Mr. SC was he going to “fuck them”. On reading the notes further, it appears to me that Mr. SC was hesitant in his response when questioned about the incident and did not specifically support Mr. MS’s explanation of the conversation. His statement was that he was talking with Mr. MS and another person and he did not specifically confirm that they were talking about three females who were staying with him. Attempts to secure the attendance of Mr. MS and Mr. SC at the hearing were not successful due to the fact that both persons have since left the employment of the respondent. The complainant has been shown to be truthful in relation to the other allegations made by him and on that basis appears to be reliable and credible in his evidence. The respondent has failed to provide any evidence specifically to disprove the complainant’s allegation in relation to the incident. On the balance of probability, I, find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to the incident on 26 October 2001.
Action taken by the respondent
…….
5.11 When the complainant complained internally, the respondent used its grievance procedure to deal with the matter rather than either the informal or formal procedures outlined in its Respect and Dignity document. The grievance procedure was used notwithstanding that the employee handbook provides at section 19.1 that an employee who believes s/he has been the subject of harassment “will need to use the Grievance Procedure (outlined in Respect and Dignity document) to file an official complaint and have it investigated.”. The respondent stated in evidence at the hearing that it used the grievance procedure as set out in the Employee handbook as the Respect and Dignity Document was not actually in existence at the time. By letter dated 27 May 2004, it confirmed that the Research and Dignity document was introduced in early 2002, approximately February/March 2002. The grievance procedure as outlined at section 21 provides for an informal discussion with the employee’s immediate manager with an appeal to the next level of management if dissatisfied. There is no reference to a formal investigation procedure. At the hearing, I sought clarification of the operation of the grievance procedure and I was informed that it took the form of a discussion at first and there may be an investigation if the matter is not resolved by discussion.
5.12 At the hearing, I also sought clarification of the type of issues that would be dealt with through the grievance procedure and I was informed that general grievances would be dealt with such as work practice issues and employees having inter personal problems. I do not consider that a serious issue such as an allegation of harassment should be dealt with by means of the grievance procedure. Additionally, I consider that the grievance procedure referred to in the handbook is not sufficiently detailed for an employee to understand fully how the matter will proceed and that the process is informal. Indeed, in this particular case, it appears that the respondent was unsure how to proceed and it used a combination of the informal process and the formal investigative process which is not actually referred to at all in section 21. It also used the formal investigative process notwithstanding that it did not have a written complaint in relation to the incidents of 14 October 2001 and 26 October 2001. This uncertainty is again obvious in the respondent’s letter of 19 November 2001 to the complainant which lacks clarity as to whether the respondent has in fact arrived at a decision following the investigation. The letter invites the complainant to attend a meeting “to discuss the outcome of the enquiry.” and in another sentence in the same letter states “Should this be the case, that you no longer wish to meet, this will leave me with no further alternative but to arrive at my decision without the benefit of your response.” The letter of 28 November which informed the complainant of the outcome states that “I now believe that there was not any intent, desire or deliberate attempt to offend you or the nature of your sexual orientation by any member of the Clarion team.”
5.13 Although the respondent carried out an investigation and established that at least some of the alleged comments had in fact been made, the employer did not at any stage:
(i) clearly indicate any findings to the complainant in respect of his allegations;
(ii) clearly indicate to other employees that such behaviour was unlawful and was regarded by it as serious misconduct;
(iii) acknowledge to the complainant that unacceptable comments had been made to him, or provide him with an apology either on his own behalf or from the employees concerned;
(iv) take any apparent steps to ensure that conduct of that nature did not recur.
On the contrary, it could be considered that by the terms of its letter to the complainant and its failure to impose any sanctions for the conduct which occurred, that a clear message was being sent to employees that harassment based on sexual orientation was considered at worst a minor annoyance to management which would continue to be tolerated and indeed perpetrated by members of management. The respondent had an obligation to ensure that conduct of such nature as occurred did not happen in the workplace by putting in place appropriate policies, staff training, and effective human resource management. It also had a responsibility to investigate allegations fairly and thoroughly and if the allegations proved to be substantiated, to clearly re-affirm that such conduct was unacceptable including if necessary, taking disciplinary measures against the persons involved, taking appropriate measures to prevent recurrence and reassuring the complainant that his rights would be protected in the future. Although the respondent in this case investigated the allegations, it did not comply with any of its other responsibilities under the Act.
5.14 I consider that the manner in which the investigation was concluded was totally unsatisfactory for the reasons outlined in the preceding paragraph. Regarding the respondent’s statement in its letter to the complainant advising him of the outcome of the investigation and stating that there was no intention to offend the complainant, I must point out that intention is totally irrelevant in relation to the question of whether discrimination occurred. The respondent also stated that it learned from the “unfortunate matter with regard to enhancing and improving our internal communication procedures….” I am concerned that the respondent appears to consider that the only issue arising from the complainant’s complaint was a deficiency in internal communication procedures and it does not appear to have considered its obligations under the Employment Equality Act, 1998. I must also refer to the respondent’s statement in its written submission to the Tribunal dated 20 February 2004 that the General Manager “felt that in fact it was Mr. Piazza who had generated by his conduct, behaviour and pervasive, negative and hostile attitude towards his colleagues and Department Manager a destructive and malicious ‘tug of war’.” I am concerned that the respondent appears to be blaming the complainant for the harassment that occurred which of course, is completely unacceptable. In any harassment claim, it is irrelevant who is to blame for interpersonal difficulties between employees and any interpersonal difficulties between the complainant and his colleagues does not excuse them from harassing him on a ground protected by the Act. The respondent emphasised the complainant’s non-attendance at the final meeting to discuss the outcome of the investigation. A person who has been harassed might be at fault for failing to make themselves available for the purposes of an investigation, particularly, where there are clear procedures for such investigations. However, in this particular case, in the absence of any clear procedures for dealing with such complaints, the complainant would not have been aware of the procedures that were being followed and it may have influenced his decision to withdraw from the process.
Vicarious liability
5.15 Section 15(1) of the Employment Equality Act, 1998 provides:
‘Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done without the employer’s knowledge or approval.’
In the present case, there is no doubt but that the actions of the various employees were carried out in the course of their employment and notwithstanding that the actions may have been carried out without the employer’s knowledge or approval, the respondent is vicariously liable for the actions of its employees.
Section 32(6) Defence
5.16 In accordance with section 32(6), it is a defence for an employer to show that he took such steps as are reasonably practicable to prevent the harassment taking place. Section 32(6) provides that:
“If, as a result of any act or conduct of E another person (“F”) who is C’s employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against C, it shall be a defence for F to prove that F took such steps as are reasonably practicable-
(b) in a case where subsection (1) applies ……. to prevent E from harassing C (or any class of persons of whom C is one).”
5.17 Section 19 of the Employee Handbook deals briefly with harassment and sexual harassment and at section 19.1 provides that any employee who believes he or she has been the subject of harassment should immediately report the matter to the Department Manager or Human Resources Manager. As mentioned at paragraph 5.11 above, it also specifies that the employee needs to use the Grievance Procedure outlined in the Respect and Dignity document to file an official complaint and have it investigated. The Respect and Dignity document refers to a complaints procedure at section 8 which appears to be an informal procedure. That section provides, inter alia:
“* If you proceed with the complaint, you may seek assistance from staff in the HR Department, who depending on the nature of the complaint will try to find a solution acceptable to both parties. Senior Management may also be involved at this stage, but not necessarily. …………..
* If the problem is not resolved under the above Complaints Procedure, the Formal Procedures outlined in (9) will apply.”
Section 9 states “For serious complaints, individual preference or where the problem is not resolved under the procedures outlined in (8) above, the following Formal Procedures will apply:”
The procedure then specifies that the person making the complaint will be required to put it in writing, that the alleged harasser will be given a copy of the written complaint and given three days to respond, that there will be a formal investigation and that the outcome will be advised to both parties.
5.18 At the hearing, the complainant confirmed that when he commenced employment, he was given a copy of the employee handbook and he subsequently signed that he had read it and handed it back. He also confirmed that he did not see a copy of the Respect and Dignity document during his employment. The respondent confirmed at the hearing that the Employee Handbook was in use from the commencement date of the respondent’s business. It subsequently clarified that the Respect and Dignity document was not actually introduced until February/March 2002 (after the complainant ceased employment on 2 November 2001). As stated at paragraph 5.12 above, I do not consider that the Grievance Procedure as outlined at paragraph 21 of the Employee Handbook is sufficient to deal with harassment in the workplace. The 1998 Act clearly expects that employers will take particular measures to ensure that employees are not harassed at work based on any of the protected grounds, along the lines of the measures clearly set out in existing case law of Equality Officers, the Labour Court and in the statutory Code of Practice. At the relevant time, the respondent had no policy on the prevention of harassment in the workplace. This had implications for the manner in which the respondent dealt with the complainant’s allegations and it also had implications for the complainant in that he would have been unsure what to expect arising from his letter of complaint. In the present case, I consider that the employer had not taken such steps as were reasonably practicable to prevent harassment occurring in the workplace and cannot therefore avail of the section 32(6) defence. I, therefore find that the respondent has failed to rebut the complainant’s claim of discrimination on the sexual orientation ground.
5.19 Of course, the existence of a policy on harassment in itself is not sufficient to prevent harassment in the workplace and the policy should include a commitment to effective communication. At the hearing, the respondent confirmed that it brings the Respect and Dignity document to the attention of employees at induction training. I note that the Deputy General Manager was interviewed on 5 November 2001 as part of the investigation into the complainant’s allegations. The minutes of that meeting indicate that when he was asked how he would interpret the comments “Bloody Woman” and “Spoilt Child”, his response was:
“I would not look at them regarding his sexual orientation. I would look at it as a Nag, somebody who cannot stand on their own two feet. I would not look at that line and think he was gay. Spoilt child the same” I am very concerned by the attitude of the senior manager in question and his view that the complainant was an annoyance and indeed the attitude of management in general in relation to the complainant’s allegations. It is therefore vitally important that any policy on harassment is communicated to all staff including all levels of management. In this regard, I refer to the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order 2002 S.I. No. 78 of 2002 which provides that:
“The policy should be communicated effectively to all those potentially affected by it including management, employees, customers, clients and other business contacts including those who supply and receive goods and services.”
I must also point out that I am not satisfied as to the adequacy of the Respect and Dignity document which for example, does not refer to membership of the Traveller Community as a ground of discrimination and I shall refer to this issue later.
5.20 The respondent emphasised that at the time of the incidents, the hotel had only been in operation six months (since March 2001) and whilst it had made efforts to have practices in place to underpin and provide for a progressive, inclusive and harmonious working environment, it was not operating at its most effective. However, the relative newness of the operation is not a defence to the discrimination claim.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 contrary to section 8 and 32 of the Act in relation to his conditions of employment.
6.2 In accordance with section 82 of the Act, I hereby order that the respondent:
(i) pay to the complainant the sum of €10,000.00 compensation in respect of the acts of discrimination (This award relates to compensation for harassment, distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(ii) revise and redraft its Respect and Dignity document to take account of the provisions of the Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 (S.I No. 78 of 2002) and effectively communicate the document to all relevant persons including management and all those referred to at paragraph 5.17 above;
(iii) provide an equality training seminar within three months for all staff including management to brief them on the provisions of the Employment Equality Act, 1998.”
M v R A Named Organisation
DEC-E2007-066
“1. DISPUTE
1.1 The dispute concerns a claim by Ms. M that she has been subjected to sexual harassment by R – A Named Organisation on the grounds of gender and sexual orientation within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.
…………….
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision in this claim is whether or not the complainant was subjected to sexual harassment by the respondent within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 on the grounds of her gender and sexual orientation and in contravention of Section 8 of those Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
4.2 The complainant has referred a claim of sexual harassment on the grounds of gender and sexual orientation to the Equality Tribunal for investigation and decision. At the hearing of this claim she withdrew her claim of sexual harassment on the grounds of gender. In relation to her claim of sexual harassment on the grounds of sexual orientation she stated that the words spoken to her by Ms. B related to her sexuality and were such as to create intimidation and affect her dignity. I find that this is properly a claim of harassment on the sexual orientation ground. I note that the respondent has argued that if I deem this to be a claim of harassment on the sexual orientation ground then it is out of time having regard to the time limits set out in the Acts and I have no jurisdiction to investigate it. I do not accept this argument having regard to the High Court Ruling in the case of Long v The Labour Court .
4.3 Both the complainant and Ms. B attended a post-conference dinner in Sligo in September, 2005. They sat opposite each other at a long table with work colleagues sitting on both sides of them. The complainant and Ms. B both agree that they engaged in conversation for a considerable period of time throughout the course of the dinner and the conversation continued after they had moved away from the dinner table into a corridor. While both the complainant and Ms. B agree that the issue of sexuality was discussed there is a conflict between them as to comments Ms. B is alleged to have made. It was alleged by the complainant at the hearing of this claim that Ms. B made the remark “you know I hate you” during the meal on a number of occasions. It was then after the meal that Ms. B is alleged to have said that she (Ms. B) hated the complainant because she was lesbian and then she said that she hated her because she was gay. According to the complainant Ms. B used the word ‘lesbian’ only on one occasion and afterwards at all times used the word ‘gay’. The complainant alleged that Ms. B stated that she hated the complainant because she lost all respect for her the day she found out she was gay. She (Ms. B) is also alleged to have said ‘the idea of two women together was unnatural’. According to the complainant there followed a discussion about it thereafter where she (the complainant) pointed out to Ms. B that her sexuality was none of Ms. B’s business in the same way as Ms. B’s sexuality was none of her business. The complainant stated, at the hearing of this claim, that the remainder of the conversation related to the issue of sexuality including telling Ms. B about coming out, informing her parents and personal things about herself (i.e. the complainant).
4.4 On the other hand Ms. B stated that the word ‘hate’ is very strong and not one to be used lightly. She denied using this word to the complainant. She further denied saying that she hated the complainant and had no respect for her. It is the Ms. B’s evidence that the complainant and herself had a detailed conversation about the issue of sexuality and much of it related to the impact of coming out in the context of promotion within the respondent organisation. According to Ms. B the complainant did not seem in any way upset by the conversation.
4.5 I note that there are no witnesses who can corroborate the complainant’s allegations. If, as is alleged, Ms. B made the comment “You know I hate you” on several occasions during the dinner in a situation where they were sitting opposite each other, I find it difficult to understand that not one of the persons sitting on either side of the complainant or Ms. B heard this comment being made. I further find it difficult to understand that a person allegedly being harassed on account of her sexuality would proceed to engage in a detailed conversation with the alleged harasser about issues, which are of a very personal nature especially in circumstances where she deemed this person to be drunk. Furthermore it is the case that the complainant and Ms. B have the same sexual orientation and this fact was known to both in advance of their discussions during and after the post-conference dinner. The complainant placed great emphasis on the fact that Ms. B had been drinking alcohol both before and during the dinner. She argued that even if she was drunk there was no excuse for these comments. I understand that both the complainant and Ms. B had consumed alcohol on this occasion and I find that the consumption of alcohol is not an issue in terms of the allegations made in this complaint. In the circumstances I find that the complainant has failed to establish a prima facie claim of harassment on the grounds of sexual orientation.
4.6 The respondent has stated that it relies on the defence provided by Section 15(3) of the Acts on the basis that it took such steps as were practicable to prevent an employee from doing the alleged act, or from doing such act during the course of his/her employment. I note that the respondent did conduct an investigation into the complaint. Interviews with all relevant persons were documented and signed both by the interviewer and the interviewee. There was no undue delay in conducting the investigation and the respondent made a finding on the basis of the evidence. On notifying the complainant on the findings of the investigation the respondent did offer the complainant mediation between herself and Ms. B in order to facilitate an improvement in their relationship. I note that it took time to arrange this mediation due to the complainant’s insistence that the mediation be conducted by an independent facilitator rather than by the person who had conducted the investigation as was being suggested by the respondent organisation. Both the complainant and Ms. B agreed that they were happy with the outcome of the mediation process. In the circumstances of this case I find that it was appropriate that the mediation was conducted by an external facilitator. It is not appropriate that a person who carries out an investigation into a claim would then proceed to mediate on the issues of that claim simply because that person has made a finding which invariably finds in favour of one person and against the other. In these circumstances the investigator is compromised especially in the eyes of the person against whom the finding is made. It should be noted that, in the Equality Tribunal, an Equality Mediation Officer who mediates on a case that does not resolve at mediation, will not act as the investigating Equality Officer on that same case.
4.7 In conclusion I find that the complainant has failed to establish a prima facie case of harassment on the grounds of sexual orientation. The respondent, in line with its policy on Bullying and Harassment, which is set out in its Employee Handbook (which the respondent says was issued to all staff and information sessions were held on the provisions of same), undertook a thorough investigation of the claim and issued its findings. At the hearing of this claim the complainant indicated that she was happy with the manner in which the investigation was conducted and the investigator was, at all times, very respectful. However, she was unhappy about the findings of the investigation stating that she felt that she was not believed. What the complainant was seeking from the investigation was:
– an apology from Ms. B;
– the drawing up of a Charter on Dignity in the Workplace so that her rights to dignity in the workplace would be upheld;
– training for staff on Equality Policies and Procedures;
– financial contribution towards her legal fees.
I note that when the complainant was notified of the findings of the investigation she was advised that she could appeal against these and was given a period of some three months in which to do so. In a letter to the respondent, dated the day before the expiration of that appeal period, the complainant stated that she would, very reluctantly be appealing the outcome of the investigation if mediation with an external facilitator did not proceed. As the mediation did proceed and was successful, the outcome of the investigation was not appealed. I am satisfied that the respondent acted appropriately in relation to its handling of this claim.
5. DECISION
5.1 In view of the foregoing I find that Ms. M has failed to establish a prima facie case of harassment on the grounds of sexual orientation in terms of Sections 6 and 14A of the Employment Equality Acts, 1998-2007. I further find that the respondent acted in accordance with its policies, on receipt of the complaint.”
Sweeney -v- Ballinteer Community School
[2011] IEHC 131
Herbert J.
“51. Dr. Lane told the court that in order to form a diagnosis that the plaintiff was suffering from severe depressive illness on the 10th November, 2008, she had to be satisfied that her symptoms had commenced no later than two weeks prior to the date of the consultation. However, given the severity of the plaintiff’s illness on that date she was satisfied that the plaintiff must have been suffering from depression for a very considerable time before that, probably for as long as two years. I find it very significant that on the 1st April, 2008, – almost five moths before her father died on the 25th August, 2008, – the plaintiff was diagnosed by Dr. McMahon as “bordering on depression this time”. Dr. Lane stated that she was aware that the plaintiff had applied to the Department of Education in 2009, for leave to retire on the basis of, “permanent ill health”. Dr. Lane stated that she was not aware that Dr. McMahon had strongly urged the plaintiff not to retire. Dr. Lane told the court that she did not have any role whatever in the plaintiff’s decision to retire.
52. Dr. Lane told the court that she was satisfied that the plaintiff was also suffering from post traumatic stress disorder. She said that the causative trauma was the threat to the plaintiff’s career and therefore her security, the feeling of helplessness in the face of the continuous bullying and harassment and, the profound threat to her core values. Dr. Lane considered that the accumulation of these matters would be sufficiently traumatic to induce post traumatic stress disorder in the plaintiff. In the plaintiff’s case she felt that all the classic symptoms of post traumatic stress disorder had become evident within the expected period: the plaintiff had intrusive memories of the events, nightmares and flashbacks, she was hyper aroused and tense which manifested itself especially in the form of hyper vigilance and hyper alertness, she avoided returning to the College, going out on her own, or anything which reminded her of the trigger events. However, Dr. Lane did not give evidence that the plaintiff had suffered a psychiatric injury because of an immediate fear for her own safety consequent on being followed by the two men. Dr. Lane admitted that she did not seek copies of Dr. McMahon’s’ clinical notes. I accept her explanation that she would not do so unless the plaintiff had a history of mental problems in the past. Dr. McMahon told the court without any reservation or equivocation that the plaintiff, in his medical opinion had not suffered from any psychiatric injury while she was under his care. No medical data studies or literature was advanced in support of the contention that a feeling of helplessness in the face of a perceived threat, not to one’s personal safety but to one’s career and not from a single traumatic event but from an accumulation of events over a period of nineteen months would be a sufficient trauma to give rise to post traumatic stress disorder.
53. It is significant that in the work, “Understanding Mental Health (Blackhall Publishing: 2006), which she produced in evidence by her, Dr. Lane at chap. 2, p. 27 states in respect of “post traumatic stress”, that:-
“This is a common condition which occurs some weeks after a person has been involved in or has witnessed a traumatic event. Examples include being involved in a road traffic accident, being held at gunpoint, being involved in a fire or an explosion. Symptoms come on between two and six weeks following the trauma . . . (etc.).”
54. In the circumstances and having regard to the decision this Court in Mullally v. Bus Éireann [1992] I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy [1996] 1 I.L.R.M. 312 I find that the plaintiff has not established, – the onus of proof being on her, – on the balance of probabilities, that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C..
55. Dr. Mohan a consultant forensic psychiatrist, who gave evidence in the case for the defendant, told the court that he had a consultation with the plaintiff on the 2nd December, 2008, and that he had also considered the following documents: the Report of the Investigating Officer dated the 26th October, 2007, the Pleadings in the instant case, the Clinical Records of Dr. McMahon, Dr. Lane’s Report, the Department of Education Attendance records relating to the plaintiff and, the views of Dr. C. and of his Solicitors. He accepted that the plaintiff did not have a personality disorder. However, he considered that she demonstrated an impaired judgment and a distorted interpretation of work place events, coupled with a tenacious sense of personal rights out of keeping with reality and, an excessive regard for her contribution to B.C.C.. Dr. Mohan agreed that he had come to this opinion principally from his analysis of the report by the Investigating Officer.
56. Dr. Mohan accepted that stress and anxiety, such as that reported by Dr. McMahon in his clinical notes relating to the plaintiff could be a significant causative factor in the onset of depression. However, he felt that the fact that the plaintiff had continued to work after the incident involving the private investigator in early February 2008, until the 1st October, 2008, with only very few days absent was, more consistent with stress than with clinical depression. Dr. Mohan told the court that if the plaintiff was in fact suffering from severe depressive illness on the 10th November, 20008, as was the opinion of Dr. Lane, he considered that evidence of the onset of that illness would have to be sought at least six months prior to that date, but not as far back as two years. He noted that the plaintiff had received no medical treatment for depression prior to the 10th November, 2008. Dr. Mohan considered that the very considerable emotional stress and feeling of victimisation reflected in Dr. McMahon’s clinical records, compounded by feelings of disappointment and anger on the 26th October, 2007, following receipt of the Investigating Officer’s report, followed by the death of her father, to whom she was very close, on the 25th August, 2008, could be capable of causing the plaintiff to become depressed. However, he considered that there was no evidence on the medical record of severe and persistent symptoms, at any rate prior to the 1st April, 2008. It was his opinion that the plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the work place.
57. I find on the balance of probabilities that the plaintiff has discharged the onus on her of establishing that she did suffer a psychiatric illness, in the form of clinical depression and, that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C. from the 28th March, 2007, onwards. The evidence established that Dr. McMahon considered that the plaintiff was fit to return to work on the 28th March 2007, and he furnished a medical certificate to that effect. I accept his evidence that the plaintiff was herself most anxious to return to work at that time. On the 1st April, 2008, Dr. McMahon found the plaintiff to be, “bordering on depression”. This was almost five months before her father died. Undoubtedly she continued to work, but it is not at all unusual for persons suffering from depression to continue to work and from what I observed of this plaintiff, I am satisfied that this would be entirely in keeping with her character. I am prepared to infer that the distress which the plaintiff experienced following the death of her father as noted by Dr. McMahon in his clinical notes for the 25th August, 2008, may have temporarily lowered her mood further, if it was already low. However, I am satisfied from her personal and medical history and from the evidence of Dr. McMahon based upon his unique insight into her character and psyche, as her general medical practitioner for over 30 years, that this bereavement did not cause or materially contribute to the onset of her depression which was noted for the first time by Dr. McMahon a few weeks later on the 2nd October, 2008.
58. Dr. Lane treated the plaintiff for depressive illness from the 10th November, 2008, to June 2010, by which time she considered the plaintiff was fit to return to work. Dr. McMahon agreed and Dr. Mohan accepted that the onset of depressive illness would be consistent with the sort of work place problems which the plaintiff claimed she was experiencing at the hands of Dr. C.. There was no evidence at all to suggest that the plaintiff had a pre disposition to depression even if an older sibling suffered from that illness. The evidence of Dr. McMahon, in my judgment, entirely disposes of that suggestion. I find that Dr. Lane is correct in her conclusion that apart from the constant stress and anxiety suffered by the plaintiff between the 28th March, 2007 and the 7th February, 2008, culminating in the traumatic events of the 7th February, 2008, there is nothing in the plaintiff’s life to otherwise account for the clinical depression suffered her. It was not suggested during the course of the action that the plaintiff was feigning illness or exaggerating her symptoms.
59. Whatever would have been the position in 2005 or 2006, I am satisfied, and I so find, that on the 28th March, 2007, Dr. C. knew or ought reasonably to have foreseen that any bullying or harassment of the plaintiff carried a “materially substantial risk” of the plaintiff suffering a mental injury as a result and could by the exercise by the reasonable care have avoided that result. Dr. C. and the Board of Management of B.C.C. knew that the plaintiff had been absent from work for a number of weeks in November and December 2005, certified by Dr. McMahon as suffering from work related stress. They knew that between the 31st August, 2006 and the 27th March, 2007, the plaintiff had been certified by Dr. McMahon as unfit for work due to work related stress. In my judgment this history of occupational stress put Dr. C. on notice that the plaintiff was vulnerable to some form of mental injury if she was subjected to further stress arising from such as would inevitably follow from bullying or harassment at work. Dr. C., despite the poor start on the 28th March, 2007, could have apologised to the plaintiff for his outburst, welcomed her back and sought to effect a reconciliation between them or if that was not possible, to at least try to work out a modus viviendi with her. If it proved impossible to re-establish even a professional working relationship with the plaintiff, then Dr. C. should have immediately called on the Board of Management of B.C.C. to intervene and to insist that the plaintiff cooperated fully with him in carrying out her duties as Home-School Liaison Coordinator. This is something which a reasonable and prudent manager would have done in the circumstances. Dr. C. ought reasonably to have known in commissioning the surveillance, that if the plaintiff became aware that she was being followed about in public by two unknown men and became frightened as a result, there was a clear and substantial risk that she would suffer a nervous breakdown, post traumatic stress disorder, depression, illusional disorder or some other form of mental illness.
60. Apart from being vicariously liable for the actions of Dr. C. the Board of Management of B.C.C. owed the plaintiff a direct duty of care, as her employer, both at common law band by virtue of the provisions of the Safety Health and Welfare at Work Act 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring. (Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349). I am satisfied that in the post 28th March, 2007, period the Board of Management of B.C.C. ought to have known, from correspondence from the plaintiff’s solicitors, correspondence from the parents of pupils in the college and, from the personal knowledge of several members of the Board involved in the day to day business of the college that the plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C.. For the same reasons to which I have adverted in the case of Dr. C., the Board of Management ought reasonably to have foreseen that there was a materially serious risk that the plaintiff would suffer some form of mental illness if the situation between her and Dr. C. was permitted to continue.
61. Despite this, the Board of Management of B.C.C. took no reasonable or proper steps as the plaintiff’s employer to address the situation. Following receipt of the letter dated the 15th December, 2007, from Dr. C. the Board of Management following its meeting on the 10th January, 2008, did invite Dr. C. and the plaintiff to meet the Board on the 17th January, 2008, and set out their respective grievances. I am prepared to accept the evidence of the Rev. former Chairman and of the current Chairperson of the Board of Management that the Board was not aware of the full extent of the problems existing and that neither the teacher’s representatives nor the Union representatives on the Board had formally raised the matter before the Board. Nonetheless, between April 2007 and the 10th October, 2008, the Board was aware that the plaintiff and Dr. C. were not communicating with each other, that confrontations were taking place between them and that this was essentially the same sort of situation which had formed the basis for the plaintiff’s complaint of bullying and harassment by Dr. C. on the 4th October, 2006. However, was apart from the single offer to meet the parties on the 17th January, 2008, the Board of Management took no positive action whatsoever to deal with the situation which the Deputy Principal in evidence described as “catastrophic, totally strange, unusual and unreal”. I find that this failure of the Board of Management to act as a reasonably careful and prudent employer would have acted permitted the continuous bullying and harassment of the plaintiff by Dr. C. to continue to the point where the plaintiff began to suffer clinical depression. Dr. C. told the court that he was driven by desperation to engage the services of the private investigator because of the failure to the Board of Management and the Department of Education to take any action in the matter. The evidence of the Rev. former Chairman of the Board of Management and the evidence of the current Chairperson of the Board suggests that the reason why the Board did not act prior to the 10th October, 2008, was that the procedures under the Code of Procedure were slow and complex and, “the lawyers had turned the whole affair into a procedural wrangle and a legal morass”. Certainly the correspondence admitted or proved in evidence in the course of the trial might afford a reasonable basis for that belief. However, this does not provide a reasonable or proper ground for taking no action at all for ten months. In my judgment the Board of Management of B.C.C. was in breach also of the direct duty of care, which, as her employer, it owed the plaintiff.
62. In my judgment the evidence establishes that the plaintiff was subjected to deliberate and continuous bullying and harassment by Dr. C. as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable. I am satisfied that from some short time after the 7th February, 2008, until June 2010, the plaintiff suffered a serious depressive illness. She has now recovered from this, but I accept Dr. Lane’s evidence that she remains at present anxious at times, is subject to occasional flashbacks and nightmares of persons following her and is vulnerable to becoming re-traumatised by any form of significant confrontation. However, neither Dr. Lane nor Dr. McMahon advised the plaintiff not to return to work or to take early retirement from teaching. On the contrary, Dr. McMahon strongly advised her against such a course. There was no evidence which would lead me to conclude that it would be irrational and unreasonable to expect the plaintiff to continue to serve as Home-School Liaison Coordinator or in some other teaching capacity in B.C.C.. She did so between the 7th February, 2008 and the 1st October, 2008 and with very few days absent from work. There is nothing I can see on the facts in this case which would in any way inhibit a simple and just resolution of the difficulties which have arisen between Dr. C. and the plaintiff which would enable them to continue to work efficiently together as professional colleagues, even if not as friends. The evidence in this case clearly established that it is quite usual for some teachers in large schools and colleges not to be on speaking terms with other teachers in the same school or college.
63. The court has already held that the defendants were negligent in causing or permitting the plaintiff to be harried, watched and beset in the course of her employment with the Board of Management of B.C.C.. I find that the same acts or omissions may form a basis for an action for breach of an implied term of contract. In Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57, Sellers L.J. delivering the judgment of the Court of Appeal held at p. 66 as follows:-
“It is perhaps sufficient if I say that, in my view, this question is a somewhat artificial one. The existence of the duty arising out of the relationship between employer and employed was recognised by the law without the institution of an analytical inquiry whether the duty was in essence contractual or tortious. What mattered was that the duty was there. A duty may exist by contract, express or implied. Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is no real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since in modern times the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract. It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.”
64. In the instant case I think it will be found that the plaintiff elected to present her case in tort. In these circumstances I feel that it can only lead to confusion to deal further with implied contractual terms and remedies for breach of contract.
65. In my opinion the actions of Dr. C. in this case do not amount to what Griffin J. described in Conway v. I.N.T.O. [1991] 2 I.R. 305 at 323 as, “wilful and conscious wrongdoing in contumelious disregard of another’s rights”. In such circumstances the court is not disposed to awarding exemplary, otherwise punitive damages to the plaintiff. In the same case Finlay C.J. defined “aggravated damages” as compensatory damages increased by reason of:-
“(a) The manner in which the wrong was committed involving such elements as oppressiveness, arrogance or outrage or,
(b) Conduct of the wrongdoer after the commission of the wrong: refusal to apologise or ameliorate the harm done, or threatening to repeat the wrong, or
(c) The conduct of the wrongdoer or his representatives in defending the claim up to and including the trial of the action.”
66. In my judgment the behaviour of Dr. C., towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The court will therefore award damages to the plaintiff for the personal injuries which she has suffered to the date of this judgment in the sum of €60,000 of which the sum of €5,000 represents the increased amount of the compensatory damages. The court will award the plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. €13,625 agreed specials.”
Garda Commissioner and another v Garda MF
AEE/97/10
“SUBJECT:
1. Appeal against Equality Officer’s Recommendation No. EE11/97.
BACKGROUND:
2. The claimant is attached to the staff at Garda Headquarters, Harcourt Square, Dublin. In September, 1994 she applied for promotion to the rank of Sergeant. She was interviewed by a Regional Interview Board but her application for promotion was unsuccessful. The claimant argues that she has higher qualifications and is more suitable than some of the successful candidates and claims that she was discriminated against on the grounds of her sex and victimised and denied promotion as a result of pursuing a previous claim under the Employment Equality Act, 1977.
The claimant lodged a complaint with the Labour Court in July, 1995 and the Court referred the complaint to an Equality Officer for investigation and recommendation. Following her investigation the Equality Officer found that the claimant had not been discriminated against when she was not short-listed for promotion.
…….
These are the Court’s findings:
– the claimant alleged she was left without suitable work; the evidence submitted which, it was claimed, would refute this allegation does not remotely do so;
– the views of an immediate superior have a profound impact on the consideration by an interview panel of a candidature for promotion;
– the views of the claimant’s immediate superiors were negative towards her in 1995 and 1996;
– the written views for 1994 are missing; it is most unlikely that the same immediate superiors held and expressed different views in 1994 than they did in 1995 and 1996;
– those negative views were totally turned around in the 1997 assessment records – by which time the claimant had acquired new superiors;
– no reasonable explanation was offered as to why the claimant should attract negative comment consistently under one set of superiors, and immediately on acquiring new superiors attract consistently positive comment;
– given the above, it is probable that the negative views of the claimant had been unjustified;
– if the claimant’s immediate superiors in 1994 viewed her capacities in a negative light, it is certain that their views negatively affected her chances of promotion from that time;
– it is furthermore very probable that they also carried their negative attitudes
into their direct dealings with her and did indeed deny her appropriate work.
Conclusion
On the balance of probabilities, and in the absence of any other reasonable explanation for the totally conflicting views held about the claimant’s qualities and capacities, the Court is satisfied that the claimant was victimised by her superiors following the taking by her in late 1993 of a claim of discrimination under the 1977 Act.
The Court finds that the claimant did suffer discrimination, in that she was penalised for having made a reference in late 1993 under Section 19 of the Act. The Court therefore holds that there was discrimination under Section 2(d) of the Act, and awards the claimant the sum of £7,500 compensation.
A preliminary issue arose in this case, namely whether the Minister for Justice Equality and Law Reform was properly cited as a Respondent in the case. The Court is satisfied that it was unnecessary but not improper to cite the Minister as employer along with the Commissioner of An Garda Siochana. The Commissioner clearly has the general direction and control of the Gardai, but the members of the Gardai are state employees under the Department of Justice Equality and Law Reform. The State is thus ultimately responsible to the claimant, and the latter Department is the appropriate arm of the State.”
Coote v Granada Hospitality Ltd
[1999] UKEAT 1332_95_1905
MORISON J.
“The decision
Section 6(2) of the Act provides that:
“It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-
a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
b) by dismissing her or subjecting her to any other detriment.”
As the Court of Appeal accepted in Adekeye the words “a woman employed by him” are “as a matter of grammar” capable of meaning “who is employed” or “who has been employed”, or, presumably, both. As the EAT pointed out in Nagarajan v Agnew [1995] ICR 520, a decision referred to by the Court of Appeal with approval, it is grammatically possible to say that although “opportunities for promotion, transfer or training” must logically only apply to present employees, the words “access to any other benefits, facilities or services” are apt to include both present and former employees. Equally, whilst only a present employee could be dismissed, a present or former employee could be subjected to any other detriment, as in this case. Thus, without constraint, the EAT could, as it seems to us, give effect to the judgment of the ECJ without distorting the language of the Act. In other words it is possible to construe the Act in a way which is in conformity with the Equal Treatment Directive.
What then is the effect of the Court of Appeal’s judgment, which is recognised by both counsel not to be binding in relation to the Sex Discrimination Act. Both parts of the discrimination legislation were regarded by the Government of the day as being part of a piece. The White Papers preceding them make that clear. In almost all respects the language of the two Acts is identical, as are the concepts within them. It was plainly Parliament’s intention that they should be construed in the same way. We are instinctively reluctant to adopt an argument which leads to two different results.
We have, therefore, with counsel’s assistance, given careful thought to the reasoning in Adekeye.
As we understand it the Court placed reliance on the fact that section 4 [in this case section 6] is drafted in the present tense. But with great respect it seems to us that the present tense would have been quite apt had the section been intended to apply to former employees, since what is made unlawful is a present act of discrimination.
Secondly, the Court was of the view that there was no room for the application of the ‘access to benefits’ to ex-employees, since access would “seem to me likely to occur during employment”. During the course of argument, quite apart from the important matter of references, to which the Court made no reference, a number of matters were raised, and the Court itself, in its deliberations has considered others: for example, the continued use of sports facilities to retirees, the payment of bonuses to present and former staff and the provision of concessionary travel facilities. All these matters might be decided or altered after the employment had ceased. If Mrs Garland (Garland v British Rail Engineering Ltd [1983] 2 AC 751)had been employed by a privatised railway company, so that she could not rely on the direct effect of the Directive, is it to be said that she, or her partner, fell outside section 6 because she had ceased to be employed? Suppose that the ‘Ideal Railway Company’ decided that all existing male pensioners should lose their concessionary travel at age 70 whereas women could enjoy them until they were 75. The access to the facility of concessionary travel facilities would aptly fall within the words “in the way he [the employer] refuses or deliberately omits to afford the male retirees access to benefits facilities or services.” It is the experience of this Court that for many different purposes the contact between employer and former employee may continue after the employment relationship has ceased. It would, we respectively think, be wrong to suggest that the construction for which Ms Rose contends [as Mr Allen had contended to the Court of Appeal] would somehow be empty of practical effect.
Third, the court placed reliance on the definition of “employee” in the 1978 [now the 1996] Act. Section 230 of the 1996 Act defines employee to mean someone who is or was in employment. Lord Justice Gibson said “there is no equivalent extension in the Act of 1976”. With great respect, there is no definition of ’employee’ in either the Sex Discrimination Act or the Race Relations Act. The fact that there was an extended definition in the 1978 Act of an employee and no definition of employee in the discrimination legislation seems to us to have no significance and could not support the conclusion advanced.
Fourth, some weight was given to the words “that employee” in section 4 of the 1976 Act. If that reference has significance, it is to be observed that those words do not appear in the Sex Discrimination Act.
We have not been persuaded that it could be said that the Court of Appeal’s decision was so mistaken [per incuriam] that it need not be followed. We quite see the force of the criticisms made of it. Indeed, we would go further and respectfully say that we disagree with it. But the doctrine of precedent requires us to follow it and had it been applicable to this case we would have done so. However, the Court expressly rejected Mr Allen’s argument that reference could be made to the Sex Discrimination Act and to European materials: “I know of no authority that compels so extraordinary a result”. Furthermore, the Court noted that Mr Allen had been:
“unable to point to any relevant interpretation of [the Equal Treatment Directive] laid down by the ECJ. It seems to me to be open to argument whether the words of the Directive “working conditions, including the conditions governing dismissal” are apt to cover an appeal procedure where the dismissal has already occurred.”
The ECJ decision in this case determines the argument to which the Lord Justice was referring. On this basis, we do not regard the decision in that case as constraining us from arriving at our conclusion that Ms Rose’s construction of section 6 of the 1975 Act is correct: both as a matter of language and Parliamentary intention and in the light of the ECJ decision. In any event, we accept her further argument that the supremacy of the ECJ’s decisions would be undermined were a lower court to feel obliged to follow a higher court’s decision in preference to giving effect to what the European Court of Justice has determined.
It follows, therefore, that we regard Ms Coote’s complaint as falling within section 6 of the Sex Discrimination Act 1975 both because of the language of the section and because it brings the section into conformity with the Directive. It follows, therefore, that the second point does not arise. Had it done so we would have found in Ms Coote’s favour on it for the reasons advanced by Ms Rose. Whether such a contention is open to her is another matter, as is the question of any application for leave to amend the IT1. Those issue will fall to be determined by the Employment Tribunal. What is now required is a determination of her complaint before a full tribunal. Although no point was taken about it, we have reservations about the legality of a Chairman sitting alone and dismissing a discrimination complaint, as happened here.
Finally, we have been concerned with the potential ‘knock-on’ effect that this decision may have. We can foresee a frustrated employee who has lost a claim of unlawful and unfair dismissal, after a lengthy hearing, trying again some years later on the pretext that no reference or a bad reference prevented him from obtaining a new job. It seems to us, on the one hand, that if an employer has been guilty of giving a discriminatory reference [that is one influenced by sex or race, or because of a previous claim] or of not giving a reference at all for reasons which are discriminatory, then as a matter of policy it is right that the former employee should have a remedy. On the other hand, tribunals must be reasonably alert to the possible misuse of this type of complaint. There must be some basis for the assertion that the way the reference was dealt with was because of race or sex or because of the doing of a protected act. We are quite content to leave this issue to the good sense of the industrial jury.
The order is that the appeal is allowed and the matter remitted back to a freshly constituted Employment Tribunal.”
A Construction Worker v A Construction Company
DEC – E2008 – 048
“1 Introduction
This dispute involves a claim by the complainant of discriminatory treatment on the sexual orientation ground, sexual harassment and victimization, Sections 6, 8, 14A and 74, to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004.
2 Background
The complainant worked with the respondent from 10th June 1996 until April 2006 as a general operative and banksman on various building sites. He alleges that he was sexually harassed, most recently in May 2005. He alleges that the respondent treated him in a discriminatory manner and victimised him when it changed his conditions of employment, placed him on sick leave and ultimately made him redundant. The respondent accepts that the recent incidents took place but denies that the sick leave or redundancy represent either less favourable treatment based on the complainant’s sexual orientation or that he was treated adversely because of his complaints.
……………….
5 Conclusions of the Equality Officer
5.1 Decision to be made
The issues before me for decision are whether or not:
the complainant was sexually harassed in terms of Section 14A, subsections (1) and (7) of the Employment Equality Act 1998-2004,
The respondent can avail of the potential defence contained in Section 14A (2),
He received discriminatory treatment based on his sexual orientation in terms of Sections 6 and 8 of the Act, and
He was victimised in terms of Section 74(2) of the Act.
In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.
5.2 Burden of Proof
The apportionment of the burden of proof in cases of discrimination is governed by Section 85A of the Employment Equality Acts, 1998 – 2004. It requires the complainant to establish, in the first instance, facts from which it may be presumed that he suffered unlawful discrimination on the basis of her gender. It is only where such a prima facie case of discrimination has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 Sexual Harassment
5.3.1 Prima Facie Case
In the first place I am satisfied, based on the evidence before me, that the incidents took place. This is confirmed by the respondent’s report of the meeting with the complainant dated 8th November 2006 where they state that the company had pointed out to the alleged harassers “that this behaviour was unacceptable and there should be no repeat”.
In the second place I am satisfied that the incidents described to me in submissions and oral evidence constitute sexual harassment in terms of Section 14A (7). The incidents described were of a very serious and offensive nature.
Section 14A (1) provides that where an employee is sexually harassed at his place of employment by another person employed at that place the sexual harassment shall constitute discrimination by the person’s employer in terms of the complainant’s conditions of employment in accordance with Section 14A (1).
Taking these facts into account I find that the complainant has established a prima facie case of discrimination and the burden of proof shifts to the respondent to rebut it.
5.3.2 Rebuttal
When the allegations finally came to the attention of the respondent they immediately sought advice from the Construction Industry Federation on how to proceed. They adapted a generic policy document on bullying and harassment to suit their own organization and implemented toolbox talks on site relating to the issues arising. However, there was no policy in place at the time of the incident. Given the earlier allegations in 2000/2001 the continued lack of a living policy in relation to harassment is difficult to understand. The complainant stated that he had no confidence in reporting incidents to his employer after these earlier incidents when he was moved and this is entirely understandable. The respondent did not deny that the earlier allegations were made.
Section 14A (2) states
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
(a) in a case where subsection (1)( a ) applies (whether or not subsection (1)( b ) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1)( b ) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
In DEC-E2007-014 the Equality Officer addressed a similar situation.
5.6 At the time of the incident the respondent had no policy, written or verbal, in operation. I am also satisfied that in the course of new employees’ familiarisation discussions with the Restaurant Supervisor no reference to how one might report such issues was mentioned by Ms. G. The harasser in this instance is the General Manager of the hotel, the most senior employee. The complainant stated that after the incident she did not know what to do or who to go to. This is entirely understandable in the circumstances. The respondent’s absolute failure to have any procedures in place to handle complaints of harassment/ sexual harassment means that it cannot rely on the statutory defence available.
In this case, I find that the respondent’s absolute failure to have procedures in place to handle such complaints of sexual harassment and to protect employees from such harassment means that it cannot rely on the statutory defence.
In addition, the fact that the complainant was moved from his site when he previously made allegations appears to justify his contention that he had no faith in reporting the matter to his employer this time and further shows that they had absolutely failed to address the issue appropriately, both in relation to its reporting and to the protection of potential victims, prior to the complaint in 2005.
I find that the respondent has failed to rebut the prima facie case of discrimination in relation to the complainant’s conditions of employment in accordance with S14A2.
5.4 Victimisation
5.4.1 The Claim
As a result of making his allegations of sexual harassment the complainant was subject to changes in his conditions of employment, some immediate and some delayed. The day after he met with his foreman and the company director he was instructed not to work at heights as a banksman. In addition, on 8th November he was asked to leave the site immediately and placed on what the respondent expected to be long term sick leave. Finally, in April/May 2006 he was made redundant [1]. The complainant’s representative argued that the treatment the complainant received in relation to his assessment and sick leave constitutes victimisation since he would never have gotten onto the ‘merry-go-round’ of doctors and assessments if he had not made his allegations of sexual harassment in the first place. Also in the first place, the complainant was temporarily suicidal because of the sexual harassment. This is to suggest that the entire process was tainted by the discrimination in the first place.
……………..
5.4.7 Summary
Having considered
The failure to inform the complainant of the results of his complaints,
The failure to inform the complainant of the possible consequences of the process set in train,
The time delay in getting an assessment,
The time delay between the final assessment and his redundancy,
The lack of clarity surrounding the information given to the psychologist,
The failure to consider other information including
the fact that they had previously considered it safe once the complainant was operating at ground level and
that he had performed satisfactorily in the interim,
The failure to allow the complainant to respond to the respondent’s removal of him from the site and the presentation to the complainant of an absolute requirement,
I am satisfied that these constitute adverse treatment within the meaning of Section 74 of the Acts and that in the absence of any reasonable justification an inference of victimisation arises. The complainant has therefore established a prima facie case of victimisation and since no justification of this was presented the respondent has failed to rebut it.
5.4.8 Redundancy
The complainant was also made redundant. Neither the complainant nor his representative have indicated that this was anything other than a real redundancy situation and although the respondent presented a list of those made redundant around the same period as the complainant, no issue has been made in relation to those general operatives junior to the complainant who were made redundant after him. Therefore I do not intend to address that matter further.
5.5 Discriminatory Treatment
The complainant did not present any evidence in respect of less favourable treatment that was based on his sexual orientation. Therefore I find that he has failed to establish a prima facie case of discrimination on the sexual orientation ground.
5.6 Respondent’s Actions
I am satisfied that the respondent was well meaning in its actions and attempted to balance the needs of the complainant with those of other employees and that there was no intention to discriminate. However, I am mindful that such intentions are insufficient of themselves as a defence. In Portroe Stevedores and Nevins, Murphy, Flood [4] the Labour Court stated:
Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).
6 Decision DEC-E2008-049
Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant was sexually harassed by the respondent amounting to discrimination in relation to his conditions of employment in terms of Section 14A of the Act. I also find that the complainant was victimised by the respondent in terms of Section 74 of the Act.
I hereby make the following order in accordance with my powers under Section 82 of the Employment Equality Acts, 1998-2008:
· That the respondent pay the complainant the sum of €14,700 by way of compensation for lost earnings as a result of the discrimination. This amount is based on an average income from the last 10 weeks worked minus welfare payments and reflects the complainant’s actual loss of earnings.
· That the respondent pay the complainant the sum of €10,000 by way of compensation for the distress and effects of the sexual harassment and the sum of €25,000 by way of compensation for the distress and effects of the victimisation. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
· That the respondent ensures its current policies relating to harassment and sexual harassment are in accordance with the Code of Practice on Sexual Harassment and Harassment issued by the Equality Authority.
· That the respondent ensures that all existing and new staff are fully acquainted with the policy and that it is raised with staff at regular intervals.
· The respondent appoint a specified contact person as a first point of contact for employees making initial enquiries or complaints, in line with best practice included in the HSA publication entitled Code of practice for Employers and Employees on the Prevention and Resolution of Bullying at Work”
Monagan CC v Mackarel
ADE/12/8
“DETERMINATION:
This is an appeal by Roy Mackarel against the decision of the Equality Tribunal in his claim against Monaghan County Council made under the Employment Equality Acts 1998- 2011(the Acts). The claim was on the grounds of his religious belief including religious background.
In line with its normal practice the parties are referred to as they were at first instance. Hence Mr Mackarel is referred to herein as the Complainant and Monaghan County Council is referred to as the Respondent.
Background
The Complainant was employed by the Respondent as a retained firefighter from October 2001 until his employment was terminated by dismissal on 10thDecember 2007. On or about 16thOctober 2006 the Complainant made complaints to the Respondent alleging that he had been subjected to harassment by work colleagues in the nature of derogatory and offensive verbal comments in relation to his religion. The Complainant is a member of the Presbyterian Church.
On foot of these complaints the Respondent initiated an investigation, initially informally and later by commissioning an investigation by an external consultant. The consultant finalised her report on 30thNovember 2007 and it was presented to the Director of HR of the Respondent on or about 7thDecember 2007. In her report the consultant concluded that the complaints of harassment made by the Complainant were not upheld. The report also dealt with an incident involving the Complainant’s conduct during the course of attending at an incident on or about 22ndSeptember 2006. The import of the finding made by the consultant in relation to this incident was that the Complainant had disobeyed an order from his Officer in Command and that he had left active duty without authorisation.
The content of this report was reviewed by the Director of HR of the Respondent over a weekend. Based on the findings of the consultant in relation to the incident of 22ndSeptember 2006 the Director of HR formed the opinion that the Complainant had been guilty of gross misconduct. He wrote to the Complainant by letter dated 10thDecember in the following terms: –
Dear Mr Mackeral.
I enclose a copy of the Report of the Investigation into the complaints made by you against Mr A and Mr B carried out by Ms C.
This matter has been treated as private and confidential and only three copies of this report have been issued to yourself Mr A and Mr B. I would ask that your respect the confidentiality with which this report has been prepared.
The findings of the investigation conclude that in relation to the complaint pertaining to harassment, sexual harassment and bullying under the Council’s Policy Statement on Workplace Bullying and Harassment you have no case answer.[sic]
The investigation details acts carried out by you that constitute gross misconduct in your role as retained fire fighter. I refer specifically to the incidents at Ballybay Community School on 22 September 2006 when you:
– Abandoned your assigned post attending to an injured person on the roof of the Community School
– Refused to obey an instruction and displayed serious insubordination to the Station Officer in charge of the incident
– Walked away from the scene of an incident
These acts constitute serious negligence of duty which might have caused unacceptable loss or injury to the victim of an incident and brought Ballybay Fire Service and Monaghan County Council into disrepute.
In a command structure operating in emergency situations such as the fire services, this insubordination of a fire fighter or failure to obey reasonable instructions as part of a team, puts lives at risk.
Consequently, having considered all the relevant evidence, I confirm that I recommending to the County Manager that your employment as a retained fire fighter is terminated
You have the right to appeal this recommendation in writing to the county managers within 10 working days of the date of this letter.
You are being suspended on full pay from 1 December to 21 December
Director of Human Resources
The Complainant did not appeal the recommendation of the Director of HR. His employment was terminated with effect from 10thDecember 2007.
The Complaints
By notice received by the Director of the Equality Tribunal on 30thMay 2008 the Complainant referred complaints against the Respondent under the Acts alleging discrimination by way of harassment on grounds of his religion and victimisation by way of dismissal. These complaints were investigated by the Equality Tribunal and in a decision issued on 23rdDecember 2011 all of the complaints were dismissed. The Complainant appealed to this Court against the whole of the Equality Tribunal’s decision.
The Appeal
At the commencement of the hearing of the appeal the Respondent raised preliminary objections to the admissibility of the complaints of harassment having regard to the time-limit prescribed by s.77(5) of the Acts. It was pointed out that the within complaints had been presented to the Director of the Equality Tribunal on 30thMay 2008 and that the incidents alleged to constitute harassment had occurred on various dates between 2003 and September 2006. On that basis it was contended on behalf of the Respondent that if harassment had occurred (which was denied) any cause of action which the Complainant may have had was extinguished by the statutory six-month time limit. It was further contended that these incidents were also outside any possible extension of time that the Complainant could obtain under s.77(5)(b) of the Acts.
The representative of Respondent fairly and, in the Court’s view, properly conceded that the circumstances in which the Complainant’s employment was terminated disclosed facts from which victimisation could be inferred. In these circumstances the Respondent conceded that in accordance with s.85A of the Acts it carried the burden of proving that the dismissal was not an act of victimisation.
The Issues Pursued in the Appeal
In light of the concession made on behalf of the Respondent Counsel for the Complainant sought an opportunity to take instructions. The Court rose and on resumption of the hearing Counsel informed the Court that the Complainant was only proceeding with his claim of victimisation in relation to his dismissal and that he was not proceeding with the complaints of harassment. The Court then proceeded to take evidence on behalf of the Respondent on the circumstances giving rise to the Complainant’s dismissal.
The Law
Victimisation is defined by s.74(2) of the Act as follows: –
“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a)a complaint of discrimination made by the employee to the employer,
(b)any proceedings by a complainant,
(c)an employee having represented or otherwise supported a complainant,
(d)the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e)an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,
(f)an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g)an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
This section of the Act is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker‘as a reaction to’a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker(see by analogy the dictum of Peter Gibson LJ inWong v Igen Limited and Ors.[2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).
Moreover, in a case such as the instant case, the Court must be alert to the possibility of subconscious or unrecognised influence by surrounding events operating on the mind of the decision maker (seeNevens, Murphy Flood v Portroe Stevedores[2005] 16 ELR 282). Hence seemingly honest evidence denying any connection between a protected act and the decision to impose a detriment must, in the absence of corroboration, be approached with caution.
In this case the burden of proving the absence of victimisation rests with the Respondent in accordance with s.85A of the Act. That burden can only be discharged if it is establish, on credible evidence, that the making of complaints by the Complainant was in no sense, beyond the trivial, an influencing or reactive factor in the decision leading to his dismissal.
Conclusion
In this case the information relating to the incident of 22ndSeptember 2006 that came into the Respondent’s possession in December 2007 was contained in a lengthy report concerning the allegations of harassment made by the Complainant. That report was commissioned so as to enquire into the alleged misconduct of others in relation to the Complainant. The terms of reference for the report were similarly circumscribed. The report nonetheless went on to deal with what by any standard was a complaint of serious misconduct against the Complainant.
The decision to dismiss the Complainant without affording him any opportunity to address the allegations contained in the report, or to allow him to make representations on his own behalf, is also striking. The Respondent is a responsible employer and the Court has no doubt that it would normally observe fair procedures before taking any action detrimental to an employee in relation to his or her employment. Yet, in this case a decision was taken to dismiss the Complainant summarily without affording him the most rudimentary form of fair procedure.
The procedural or substantial fairness of the dismissal,per se, is not the determinative question in issue in this case. If it was a case of unfair dismissal, the Respondent would plainly be in considerable difficulty, at least on procedural grounds. Rather, what is in issue is whether or not the fact of the Complainant having made complaints of harassment against his colleagues was in any sense an influential or causative factor leading to his dismissal. The Court accepts that Mr Clifford gave honest evidence to the best of his ability. It further accepts that he was primarily motivated in his decision to recommend the Complainant’s dismissal by what he regarded as the seriousness of the misconduct disclosed in the report. While there was undoubtedly procedural unfairness in the manner of arriving at that decision that does not in itself establish victimisation. Nevertheless, the juxtaposition in the report of the conclusions on the complaints made by Complainant, with those made against him, coupled with the peremptory manner in which the Respondent acted, makes it impossible for the Court to discount the possibility that but for the Complainant’s complaints of harassment he may not have been treated as he was.
It is also of considerable significance that the incident relied upon by Mr Clifford to justify the Complainant’s dismissal occurred in September 2006. Notwithstanding the seriousness of the incident the Complainant’s superior officer did not invoke any disciplinary process at that time. Nor did he report the incident to Mr Clifford. Against that background it seems at least probable that but for the disclosure of this incident in the report it would not have come to Mr Clifford’s notice. It follows that had there been no complaints of harassment by the Complainant there would have been no investigation. Had there been no investigation there would have been no report and had there been no report there would have been no dismissal.
In all of these circumstances the Court has reached the conclusion that the Respondent has failed to prove, as a matter of probability, that the Complainant’s dismissal was not as a reaction (in the sense described above) to his complaints of harassment on grounds of his religious belief or outlook.
Determination
The Court must hold that the Complainant is entitled to succeed in his complaint of victimisation.
The Court is satisfied that the appropriate form of redress in this case is an award of compensation. Having regard to all the circumstances of the case the Court measures the amount of compensation that is fair and equitable at €17,000. The Respondent is ordered to pay the Complainant compensation in that amount. No part of this award is in respect to remuneration.
The appeal is to that extent allowed and the decision of the Equality Tribunal is varied accordingly.”
Portroe Stevedores v Nevins, Murphy, Flood
ADE/04/15
“BACKGROUND:
2. A Labour Court hearing took place on the 14th January, 2005, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the is the Court’s determination:
DETERMINATION:
Background.
The appellants / complainants, Patrick Nevins, Brian Murphy and Anthony Flood (hereafter referred to as the complainants) are casual dockers employed at Dublin Port. Mr Nevins is 59 years of age. He has worked as a docker for 43 years. Mr Murphy is 54 years of age and has worked as a docker for 38 years. Mr Flood is 61 years of age and has worked as a docker for 43 years.
Following a reorganisation at Dublin Port in 1992 the complainants became part of a pool from which casual labour was provided to stevedoring companies including Portroe Stevedores Ltd (hereafter referred to as the respondent). The respondent employs a small number of permanent dockers and occasionally recruits additional permanent staff from amongst the casual workforce. In March 2002 the respondent decided to employ three additional permanent dockers and advertised the vacancies amongst the casual workforce. The complainants applied for these vacancies and were unsuccessful. Three other casual dockers, each of whom was under the age of 40, were appointed.
The complainants claim to have been discriminated against by the respondent on grounds of their age in the filling of these posts, contrary to section 8 of the Employment Equality Act 1998 (the Act). Their claims were investigated by an Equality Officer of the Equality Tribunal who held that they had failed to make out a prima facie case of discrimination and dismissed their claims. The complainants appealed against that decision to this Court.
……
Findings of fact.
The Court has carefully evaluated the evidence adduced and has had regard to the demeanour of the witnesses in giving their evidence. While there was a sharp difference of recollection between the complainants and the witnesses for the respondent on a number of salient points, the Court has reached the following conclusions, on the balance of probabilities, as to the material facts.
It is clear that the respondent had difficulty in obtaining workers to operate the LHM mobile cranes which it had acquired. The Court accepts that the respondent wanted to recruit workers who could be trained to operate these cranes safely and effectively. None of those who were members of the casual pool at the material time had these skills. Thus whoever was recruited from this pool would have had to undergo training and would have had to be willing and capable of being trained.
The Court is satisfied that none of the complainants were offered training in the operation of these cranes and, in consequence, could not have refused to undertake this training. Moreover, the Court is satisfied that the complainants were never advised, either generally or in relation to particular vacancies, that they would need to enhance their skill levels in order to be considered for permanent positions. The evidence indicates that the successful candidates also lacked the requisite skills to operate these cranes at the time of the competition and were trained to undertake this function after their appointment.
Mr Murphy was not interviewed for the disputed positions and the Court believes, as a matter of probability, that the witnesses who gave evidence for the respondent are mistaken in their recollection that he had recently been interviewed for another vacancy. There is no record of any such interview or other documentary evidence to show that he was ever invited to interview at the relevant time. The interview of Mr Nevins and that of Mr Flood appear to have been unstructured and conducted nonchalantly.
In so far as an assessment of candidates was undertaken by the respondent as part of the selection process, it was subjective and appears not to have been based on consistent or predetermined criteria. The complainants were not told that an assessment was being undertaken nor were they provided with an opportunity to address concerns which the management may have had as to their competencies or past performance. The Court accepts that the complainants were not directly or personally advised that their applications were unsuccessful.
The Court accepts that Mr Flood’s recollection of his interview is substantially correct. In that regard the Court accepts, as a matter of probability, that Mr Flood was asked his age at interview.
The evidence adduced concerning the pattern of recruitment by the respondent into general operative positions since its inception in 1992, show that the breakdown by age as of March 2002, was as follows:
60 > 1 (Now a Director and Manager)
51- 60 0
41-50 1
31-40 621-30 6
While this is not formal statistical evidence in the strict sense, the Court regards it as having some probative value and indicating a preference on the respondent’s part for employees under the age of 40.
Approach of the Court.
It is not the Court’s function to determine who was the most meritorious candidate for the disputed position. Rather, its role is to establish if the selection was tainted by unlawful discrimination. In that regard, it is generally acknowledged that cases of alleged discrimination present special problems of evidence and of proof. Those who discriminate unlawfully rarely do so overtly and do not leave evidence of the discrimination within the complainant’s power of procurement (see Nakoto v Citibank [2004] 15 ELR 116).
Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).
In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.
Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.
Burden of Proof.
It is accepted that if the complainants make out a prima facie case of discrimination the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court in Teresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent.
There is no exhaustive list of factors which can give raise to an inference of discrimination. Nor is it necessary in every case involving access to employment for a complainant to prove, as a matter of primary fact, that their qualifications are superior or equal to those of the successful candidate before the probative burden can shift. Were it otherwise an unduly onerous burden could be placed on a complainant since the details of the successful candidate’s qualifications might not be within their power of procurement.
Applying those principles to this case, the Court is satisfied, on the evidence, that the selection process, as it was applied to the complainants, was not used to ascertain if they were genuinely interested in acquiring the skills necessary for the jobs available or to assess their suitability for those positions. The Court is also satisfied, from the primary facts found and set out in this determination, that the complainants’ applications were not taken seriously by the respondent and that, in all probability, the decision not to employ them was taken before the formal selection process commenced. Further, the question put to Mr Flood at interview concerning his age and the data concerning the age profile of those recruited by the respondent since 1992, establishes an evidential nexus between the unfair treatment of the complainants and their age. These are facts of sufficient significance to establish a prima facie case of discrimination and so shift the probative burden to the respondent.
Conclusion.
The respondent must rebut the presumption of discrimination which arises in this case. The quality of evidence necessary to discharge that burden was recently considered by the Employment Appeals Tribunal for England and Wales, inBarton v Investec Henderson Crostwaite Securities Ltd [2003] IRLM 332. Here it was held that since the facts necessary to prove an explanation would usually be in the possession of the respondent, a tribunal should normally expect cogent evidence to discharge that burden. That decision is of persuasive authority and the Court has adopted a similar approach in the instant case.
The decision not to appoint the complainants was taken on foot of a recommendation made by Mr Montgomery and Mr Kelly (both of whom are managers with the respondent). Mr Montgomery gave evidence before the Court to the effect that the selection was based on an interview of the candidates and an assessment of their skills, performance and general suitability. Mr Kelly did not give evidence. The Court was not furnished with contemporaneous notes of the interviews and it appears that none exist. It also emerged in evidence that there were no documented criteria against which the assessments were made nor are there records of the results of the assessment.
The Court has previously found it necessary to emphasise that processes used in making selection for employment must be sufficiently transparent and examinable so as to satisfy the Court that the result was not tainted by discrimination. In Determination No EDA039 –Daughters of Charity v Martha McGinn, and more recently in Determination No 0412 Department of Health and Children v John Gillen, the Court found that the failure of the employer to maintain interview notes and assessment records was fatal to their defence against allegations of discrimination.
Mr Montgomery gave evidence to the effect that the age of the complainants was irrelevant in the decision not to appoint them to the vacant positions. He also gave evidence as to the perceived capabilities and reliability of the complainants. Other witnesses for the respondent corroborated Mr Montgomery’s evidence on this latter point. Nonetheless, in the Courts view, this evidence does not provide an adequate explanation for the respondent’s failure to fairly use the selection process to assess the complainants’ suitability for the jobs or for the absence of any reasonable degree of transparency in that process as it was applied to the complainants. For that reason, and in the absence of any interview notes or other records of how the results were arrived at, the Court does not accept that the evidence of the witnesses for the respondent goes far enough to discharge the probative burden which the respondent bears. Accordingly, on the evidence adduced before it, the Court has diverged from the decision of the Equality Officer and has come to the conclusion that each of the complainants was discriminated against on the age ground and is, accordingly, entitled to succeed in this appeal.
Determination.
The Court determines that the respondent discriminated against the complainants, namely, Patrick Nevins, Brian Murphy and Anthony Flood on the age ground contrary to Section 8 of the Act in failing to fairly consider their application for employment to the position of permanent general operative. The Court notes that the second and the third named complainants have now retired and thus considers that the appropriate redress in their case is an award of compensation. The Court awards Brian Murphy compensation for the affects of the discrimination which he suffered in the amount of €7,000 and similarly awards Anthony Flood €7,000 for the affects of the discrimination which he suffered.
The Court considers that the appropriate redress in the case of Patrick Nevins is an order that the respondent employ him as a general operative on the same terms and conditions as are currently applied to the those recruited following the impugned competition in March 2002, and that he be provided with the training necessary to undertake the duties of that position. This order is to take effect one month after the date on which it is issued. The Court further determines that Patrick Nevins be paid compensation in the amount of €4,000 for the affects of the discrimination which he suffered.
The appeal herein is allowed.”
Ms. Z v A Transport Company
DEC-E2009-105
“1. Dispute
1.1 This dispute concerns a complaint by Ms Monica Murphy against Iarnrod Éireann. The complainant alleges that she was discriminated against on the ground of gender in relation to her conditions of employment and access to promotion and harassed by her employer on the same ground contrary to the Employment Equality Acts 1998-2008 [hereinafter referred to as the ‘Act’]. She is also claiming victimisation for making a complaint of discrimination against Iarnrod Éireann.
4. Conclusions of the Equality Officer
4.1 There are four issues for me to decide:
(i) Was the complainant discriminated against by Iarnrod Éireann in relation to her conditions of employment as per Section 8 (1)(b) on the ground of gender?
(ii)Was the complainant harassed in terms of Section 14A(7) and whether the respondent has a viable defence against a claim of harassment as per Section 14A(2) of the Act?
(iii) Did the complainant suffer discriminatory treatment on the ground of gender in relation to access to promotion in terms of Section 8 (8) of the Act?
(iv) Was the complainant victimised within the meaning of Section 74 (2) of the Act?
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is gender.
4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’
Conditions of Employment
4.4 I am satisfied the complainant was isolated from the rest of the Marketing Department (2.3 and 3.3). Her salary was paid out of the Human Resources allocation. She has not received any increments since 2003 as she is at the top point of graded scale. I requested the budgets available to Mr A’s direct reports as well as Mr G from 2003 to 2006. This information was not supplied to me so I may draw appropriate inferences. I accept the complainant’s contention (and the respondent did not deny this) that she was given no budget to spend on marketing campaigns. She had no staff reporting to her. The staff suggestion scheme which was her main duty was left dormant since January 2004 until Ms Murphy was assigned it in March 2005. It clearly was not a business priority for Iarnrod Éireann. This was not a role commensurate with the complainant’s marketing skills and experience. In direct evidence, Mr A admitted that since 2003 the complainant does not have a proper job title.
4.5 The respondent had stated that the complainant did not routinely attend for work (2.24 and 3.5). In response, the complainant said because her office was damp and because of the uncomfortable atmosphere at work she occasionally worked from home. Evidence of permission for remote access for Ms Murphy was presented to me. Voluminous correspondence from Ms Murphy’s work email address relating to her job description, workflow (including a comprehensive review of the staff suggestion scheme on 28th October 2005) and conditions of employment would indicate to me that she was available for work and completed all tasks assigned to her. Regarding the damp office (2.3 and 3.8), I find the complainant’s evidence more compelling. The basement has been damp-proofed since and while this work was ongoing I am satisfied the other occupants did not move to the building in Abbey Street suggested by the respondent as they also found it to be unsuitable.
4.6 In the absence of disciplinary issues (2.6 and 3.2), the insistence of Mr A having Ms C present at all meetings with the complainant (especially when Ms C had no involvement in marketing) and the refusal of Ms C to provide notes of these meetings until they were requested under the Data Protections Acts contributed to a hostile atmosphere and so also constitutes discriminatory treatment.
4.7 From the start the complainant saw the issue of non-payment of subscriptions in Iarnrod Éireann as one of gender discrimination (2.7 and 3.2). The complainant is seeking recoupment of these fees in another forum. Section 101 of the Employment Equality Act sets out specific circumstances restricting a complainant from dual avenues of redress. This is not one of them. Had the Oireachtas intended to curtail an employee’s right in that respect it would have specifically legislated for same. Consequently, I have jurisdiction to examine this issue in the context of discriminatory treatment on the grounds of gender. Ms Murphy named a number of male colleagues in her area of work whose subscriptions continue to be paid. Iarnrod Éireann did not dispute this. Iarnrod Éireann did not present to me a written protocol for paying professional membership subscriptions for employees. Of course, Mr A, as Ms Murphy’s line manager has a right and responsibility to ensure public money is spent wisely. I requested the details of professional fees paid to all direct reports to Mr A from 2003 to 2008 to include sanctions and refusals of same. This information was not supplied to me and again I may draw appropriate inferences. I accept the complainant’s contention that professional fees were paid for her male colleagues. I find that the complainant has been treated less favourably than her male peers in the Commercial area in relation to this issue. This along with Mr A’s refusal to sign off on annual leave and other expense claims (no evidence was presented that male direct reports were treated in the same way) and the exclusion of the complainant at the CILT dinner while entertaining male colleagues constitutes less favourable treatment on the ground of gender.
4.8 On its own, offering somebody an exit package does not constitute discriminatory treatment (2.4 and 3.3). However, in the context of placing obstacles in relation to access to promotion as well as creating an atmosphere (by isolation and lack of significant work) where the complainant could ‘rust out’, I find this to be another act of discriminatory treatment in relation to Ms Murphy’s conditions of employment. I am satisfied that a man with similar qualifications and experience in the company would not have been treated in the same way.
4.9 It should also be noted that Ms Murphy made a complaint of bullying by Mr A and Ms C to the Equality Officer, Ms E. Ms Murphy wished this matter to be investigated in an informal way (initially) as per the Company policy on bullying and harassment (2.23 and 3.1). While Ms E was in the unenviable situation of her immediate supervisor being accused of bullying, I still find that she handled the situation in a very unsatisfactory way. Following the complainant’s raising of the matter, Ms E emailed Mr A (one of the alleged harassers) on 24th May 2006:
“Hi,
As you can see below the correspondence continues with Monica Murphy. I wonder would you consider inviting [named mediator] to do an informal investigation into Monica’s concerns. He could speak with any witness she may want to call and write up his findings. He may be in a position to suggest a satisfactory outcome. I can organise this if you wish to proceed. “[my emphasis]
On the print-out of this email Ms F, Mr A’s PA wrote ‘In principle, Mr A has no problem at all with this. Ms E to discuss with him first’. On 15th June 2006, Ms E asked Ms F if they could get a resolution to this matter and wanted to know from Mr A if she should go ahead and organise an informal investigation with Monica’s [Murphy] consent. Evidently, the initiation of this investigation was not carried out in line with fair procedures. In these circumstances, it is hardly surprising that the complainant’s trade union representative advised her to withdraw from this process. As per Paragraph 2.24 the complainant also raised these issues with the CEO of Iarnrod Éireann and no effective action took place. Therefore, I find that the complainant has established a prima facie case of discriminatory treatment regarding her conditions of employment and the respondent has failed to rebut this inference of discrimination.
Harassment
4.10 Section 14 (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.11 I am not satisfied that sufficient evidence has been adduced that the complainant was harassed on the ground of gender. Therefore this strand of her case cannot succeed.
Access to Promotion
4.12 According to Section 8(8) of the Act, an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds the employers refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or the employer does not in these circumstances offer or afford the employee access in the same way to those opportunities. The Labour Court has held that if the protected factor or characteristic is more than a trivial influence in the impugned decision, a claim of discrimination will have been made out.
4.13 Regarding the Marketing and Planning roles in 2003 (2.2 and 3.1), it is common case that the complainant withdrew her application for same prior to the interview. Ms Murphy is a person who was and continues to be interested in career progression. Therefore I am satisfied that the complainant did not take this action without assurances, which she felt she could rely on, that the position to which she was to be appointed was at the same level as the ones from which she withdrew her application. The justification the respondent gave for offering the complainant an alternative position (which is clearly at a lower level than the Marketing and Planning roles) was that neither Mr D nor Mr H who had previously worked with Ms Murphy were enthusiastic about acquiring Ms Murphy as a member of staff. No satisfactory supporting evidence was presented to me to substantiate this position. Both of Mr A’s letters requesting views on Ms Murphy’s suitability for promotion were sent on 1st March 2004 (approximately six months after the three Marketing and Planning Managers were appointed). Mr H responded to Mr A in writing saying that it had been many years since he had worked with the complainant so he could not judge. Mr D did not respond in writing. However, in subsequent years Mr D allowed the complainant to use his budget allocation which could indicate that he found her to be reasonably competent. The respondent did not call either Mr D or Mr H as witnesses although both continue to be employed on a consultancy basis by Iarnrod Éireann. By misrepresenting the Marketing Communications Manager role, I am satisfied that the respondent did not offer Ms Murphy the same access to these promotional opportunities (Marketing and Planning Managers) as the three successful male candidates. In direct evidence, Mr A said ‘one of Monica’s problems is her ambition’. Having adduced all the evidence, I am satisfied that discrimination on the ground of gender occurred in not affording the complainant access to promotion to the Marketing and Planning positions in 2003.
4.14 Regarding the Corporate and E-marketing position in 2006, I requested and received the competition file as evidence (2.12 and 3.4). The file shows that an other internal candidate accessed the aptitude test on 11th September. This conflicts with what Ms C, Human Resources Manager, Central Services wrote in her letter to the complainant on 8th September ‘As testing of all other candidates concerned has been completed there is a pressing need to begin the interview stage’. I accept the complainant’s contention that at no time was she able to open the personality questionnaire and that the Human Resources Department did nothing to facilitate access despite the complainant and her union raising concerns. The dates when the other candidates were unavailable for the in-tray exercise were handwritten on the file. The availability or otherwise of Ms Murphy was not included on this list. One of the internal male candidates was allowed to do the intray exercise on a different day (18th August) to the date stated on his letter (16th August). The complainant was not given an alternative date. Ms Murphy might have been better advised to insist on the questionnaire and in-tray exercise being made available to her and gone ahead with the interview rather than also being adamant on receiving a job specification for the role and using the competition as leverage to gain certainty for her role in the company hierarchy. (In relation to the job specification, I note a copy of the draft one was included in the competition file and Ms C said in direct evidence that other applicants may have seen a version of it. On the balance of probabilities, I consider that Ms C’s evidence is likely to be correct. I would be surprised if candidates for a senior position would attend an interview without some information other than a half-page advertisement as to what the role entailed.) However, this does not take from the fact that the complainant was not allowed access to promotion in the same way as the other candidates. The Labour Court has held that ‘in the absence of unfairness in the selection process, or manifest irrationality in the result, it will not seek to undertake its own assessment of candidates or substitute its views on their relative merits for those arrived at by the designated selectors’ I am satisfied that there was unfairness in the selection process in that the complainant did not have access to the personality questionnaire and while other candidates were facilitated with alternative dates, the complainant was not. Therefore, I will look at the relevant qualifications and experience of Ms Murphy and the successful candidate.
Ms Murphy Mr G
Qualifications MBS in Marketing (1st class honours) MBA in Operations and Management Information Systems (Grade not stated)
Years of post-qualification experience 22 years 7 years
Examples of achievements ‘Member of taskforce to set up and reposition Iarnrod Éireann in 1987 and move it away from the old CIE image. Responsible for the Marketing elements of the Business Plan. External consultants recommended that the Bus company abandon their Marketing Plan and replace with my proposals’
‘Appointed PR Chair of Irish Congress of Southern California. Organised the PR coverage for one St Patrick’s Day parade which had a record attendance of 85,000’
‘Set up a programme of on-ticket advertising on backs of tickets. This resulted in free print advising to the value of 20,000.’
‘Lectured to Final Year students in Marketing’ ‘Project Manager for deployment of Online Reservation and Sales’
‘Project Manager for deployment of Speech Recognition System’
‘Project manager for Realtime DART SMS service’
‘Setup and management of relationship with Ticketmaster’
‘ Managing all the technological aspects of [ Irish online auction website]
While the achievements of Mr G are impressive, it would seem that, on paper, Ms Murphy would also be a strong candidate had she got to the interview stage. Iarnrod Éireann would seem to concur with this view as handwritten on the Corporate and E-marketing competition file is ‘Fact of Monica’s application indicates she could win or lose’.
4.15 Regarding the use of the Equality Audit, statistics can be quoted from it to support either the complainant’s or respondent’s arguments (2.22 and 3.13). Therefore I will not dwell on same.
4.16 Regarding access to the promotion of Corporate and Emarketing Manager in 2006, I am satisfied that the complainant has established a prima facie case of discrimination and the respondent has failed to rebut Ms Murphy’s claim of less favourable treatment.
4.17 As Ms Murphy did not apply for the position of Marketing Manager in 2009 (2.16) I cannot make a finding in relation to this promotion.
Victimisation
4.18 Section 74 (2) of the Act state 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.
4.19 Regarding the accessing of the complainant’s email(2.19 and 3.8), the Acceptable Use Policy: Use of CIE Information Systems states ‘Email must not be used for unlawful activities, commercial purposes not under the auspices of CIE, personal financial gain, sexual harassment, bullying or any other use inconsistent with CIE Group Information Security Policy and Standards.’ No evidence was presented to me that the complainant used email facilities for any of the purposes above. In common with all members of the Executive Committee of the Marketing Institute of Ireland, she uses her work email as her contact address. She sees her work there as part of her Marketing function especially in the context of the lack of meaningful work assigned to her by her employer since 2003 and her wish to use her time productively. The respondent has stated that the complainant has misrepresented herself as a Senior Manager to these professional organisations. No evidence was presented to me that this was the case – in fact the MII pen picture of Ms Murphy (included in the respondent’s submission) accurately reflected the complainant’s position and experience. Iarnrod Éireann have presented some of the emails accessed without the complainant’s permission as evidence before me but none of them relates to the prohibited activities mentioned in their Acceptable Usage of IT policy. All of these emails relate to the complainant’s communications with her Trade Union. I am satisfied that Ms Murphy’s email was read not to examine her work pattern or whether she was using Iarnrod Éireann facilities for personal financial gain but to further intimidate her and to be privy to her complaint of gender discrimination and bullying against Mr A. Had substantial evidence been found of either non-attendance at work or use of email for commercial purposes unrelated to Iarnrod Éireann, this should have been raised as a disciplinary issue with the complainant. While Iarnrod Éireann has the right to monitor email to ensure it conforms to their Acceptable Usage policy, I find the accessing of the complainants email, in this context, constitutes victimisation.
4.20 Regarding the incident on the stairwell (2.20 and 3.7), Mr A is, of course, entitled to supervise the complainant’s work and query her on same. However, I accept the complainant’s contention that this encounter was unnecessarily aggressive. I am also satisfied that the complainant has been excluded from some social events (2.2 and 3.12) and that annual leave and expenses were not sanctioned since she raised the issue of gender discrimination to Ms E. Having evaluated all the evidence adduced to me, I find that the complainant was victimised within the meaning of the Act.
4.21 In calculating redress for the complainant, I must be cognisant of a number of factors. The company’s own Policy on the Prevention of Workplace Bullying, Harassment and Sexual Harassment states ‘those in managerial or supervisory roles have a particular responsibility to promote a culture of dignity, respect and openness to diversity’. Mr A reported directly to the Chief Executive Officer and had responsibility for Human Resource Management. The Chief Executive Officer was aware of the complainant’s concerns and failed to ensure the matter was investigated properly in line with fair procedures. Ms Murphy has submitted that she has felt distressed, undervalued and intimidated with what has occurred since 2003 in Iarnrod Éireann and I can understand how this would be the case. I am also guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive .
Decision
I have concluded my investigation of Ms Murphy’s complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) the respondent discriminated against the complainant in relation to her conditions of employment contrary to Section 8 (1)(b) of the Act on the ground of gender
(ii) the complainant was not harassed on the ground of gender contrary to Section 14A of the Act
(iii) the respondent discriminated against the complainant in relation to access to promotion in terms of Section 8 (8) of the Act on the ground of gender
(iv) the respondent victimised the complainant within the meaning of 74(2) of the Act.
In accordance with Section 82 of the Act, I order the respondent:
(a) that the complainant is provided with meaningful work consistent with her skills and experience with immediate effect
(b) provide for a facilitation/mediation process involving the complainant, Mr A, Mr B, Ms C and Mr G with a view to restoring working relationships. The facilitator/mediator should be suitably qualified and unknown to the parties. This process should take place as soon as possible but should begin not later than three months from the date of this decision. The Facilitator/Mediator should be given the authority to include other colleagues in the process where s(he) considers it necessary and appropriate.
(c) pay the complainant:
(i) €126,000 (the equivalent of two years salary) in compensation for the discrimination in relation to her conditions of employment and access to promotion
(ii) €63,000 (the equivalent of a year’s salary) in compensation for the distress caused by victimisation.
The total award of €189,000 is redress for the infringement of Ms Murphy’s statutory rights 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).”
Nils Draehmpaehl v Urania Immobilienservice OHG.
[1997] EUECJ C-180/95
“The first question
16 By its first question the national court asks in substance whether the Directive and, in particular, Articles 2(1) and 3(1) thereof, preclude provisions of domestic law which make reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault.
17 In paragraph 22 of its judgment in Case C-177/88 Dekker [1990] ECR I-3941 the Court held that the Directive does not make liability on the part of the person guilty of discrimination conditional on proof of fault or on the absence of any ground discharging such liability.
18 In paragraph 25 of that judgment the Court also stated that, when the sanction chosen by the Member State is provided for in rules governing employers’ civil liability, any breach of the prohibition of discrimination must, in itself, be sufficient to render the employer fully liable, without there being any possibility of invoking the grounds of exemption provided for by domestic law.
19 It must therefore be concluded that the Directive precludes provisions of domestic law which, like Paragraph 611a(1) and (2) of the BGB, make reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault.
20 That conclusion cannot be affected by the German Government’s argument that proof of such fault is easy to adduce since, in German law, fault entails liability for deliberate or negligent acts.
21 It must be pointed out in this regard that, as was stated in paragraph 25 of the judgment in Dekker, the Directive does not provide for any ground of exemption from liability on which the person guilty of discrimination could rely and does not make reparation of such damage conditional on the existence of fault, no matter how easy if would be to adduce proof of fault.
22 The answer to the first question must therefore be that when a Member State chooses to penalize, under rules governing civil liability, breach of the prohibition of discrimination, the Directive and, in particular, Articles 2(1) and 3(1) thereof, preclude provisions of domestic law which make reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault.
The second and third questions
23 By these questions, which should be examined together, the Arbeitsgericht asks in substance whether the Directive precludes provisions of domestic law which place a ceiling of three months’ salary on the amount of compensation which may be claimed by applicants discriminated against on grounds of their sex in the making of appointments. It also asks whether the answer to that question applies equally to applicants who were discriminated against in the recruitment procedure but who, owing to the superior qualifications of the applicant engaged, would not have obtained the position even if the selection process had been free of discrimination and to those who were discriminated against in the recruitment procedure and who would have obtained the position to be filled if selection had been carried out without discrimination.
24 In this regard, it must be pointed out first of all that, even though the Directive does not impose a specific sanction on the Member States, nevertheless Article 6 obliges them to adopt measures which are sufficiently effective for achieving the aim of the Directive and to ensure that those measures may be effectively relied on before the national courts by the persons concerned (Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 18).
25 Moreover, the Directive requires that, if a Member State chooses to penalize breach of the prohibition of discrimination by the award of compensation, that compensation must be such as to guarantee real and effective judicial protection, have a real deterrent effect on the employer and must in any event be adequate in relation to the damage sustained. Purely nominal compensation would not satisfy the requirements of an effective transposition of the Directive (Von Colson and Kamann, paragraphs 23 and 24).
26 Similarly, the German Government’s argument that compensation consisting of a maximum of three months’ salary is more than nominal and represents an appreciable, considerable and dissuasive financial burden, thus awarding the person discriminated against appreciable compensation, cannot be regarded as well founded.
27 As the Court held in paragraph 23 of its judgment in Von Colson and Kamann, once the Member States choose to make good damage suffered as a result of discrimination prohibited by the Directive pursuant to rules governing employers’ civil liability, the compensation awarded must be adequate in relation to the damage sustained.
28 Moreover, it is clear from the order for reference, from the answers given to the questions put by the Court and from the explanations given at the hearing that the provisions of German law applicable in the case before the national court place on compensation a specific ceiling which is not provided for by other provisions of domestic civil and labour law.
29 In choosing the appropriate solution for guaranteeing that the objective of the Directive is attained, the Member States must ensure that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of domestic law of a similar nature and importance (Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 24).
30 It follows from the foregoing that provisions of domestic law which, unlike other provisions of domestic civil law and labour law, prescribe an upper limit of three months’ salary for the compensation which may be obtained in the event of discrimination on grounds of sex in the making of an appointment do not fulfil those requirements.
31 The question which must therefore be considered is whether that answer applies equally to job applicants who, because the successful applicant had superior qualifications, would not have obtained the position, even if the selection process had been free of discrimination, and to those who would have obtained the position if selection process had been carried out without discrimination.
32 In this regard, it must be borne in mind that, as paragraphs 25 and 27 of this judgment make clear, reparation must be adequate in relation to the damage sustained.
33 Nevertheless, such reparation may take account of the fact that, even if there had been no discrimination in the selection process, some applicants would not have obtained the position to be filled since the applicant appointed had superior qualifications. It is indisputable that such applicants, not having suffered any damage through exclusion from the recruitment procedure, cannot claim that the extent of the damage they have sustained is the same as that sustained by applicants who would have obtained the position if there had been no discrimination in the selection process.
34 Consequently, the only damage suffered by an applicant belonging to the first category mentioned in paragraph 31 above is that resulting from the failure, as a result of discrimination on grounds of sex, to take his application into consideration, whereas an applicant belonging to the second category has suffered damage as a result of a refusal to engage him, owing, specifically, to the objectively erroneous assessment of his application, as a result of discrimination on grounds of sex, made by the employer.
35 Having regard to those considerations, it does not seem unreasonable for a Member State to lay down a statutory presumption that the damage suffered by an applicant belonging to the first category may not exceed a ceiling of three months’ salary.
36 In this regard, it must be made clear it is for the employer, who has in his possession all the applications submitted, to adduce proof that the applicant would not have obtained the vacant position even if there had been no discrimination.
37 The answer to be given to the second and third questions must therefore be that Directive 76/207 does not preclude provisions of domestic law which prescribe an upper limit of three months’ salary for the amount of compensation which may be claimed by an applicant where the employer can prove that, because the applicant engaged had superior qualification, the unsuccessful applicant would not have obtained the vacant position, even if there had been no discrimination in the selection process. In contrast, the Directive precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, prescribe an upper limit of three months’ salary for the amount of compensation which may be claimed by an applicant discriminated against on grounds of sex in the making of an appointment where that applicant would have obtained the vacant position if the selection process had been carried out without discrimination.
The fourth question
38 By its fourth question the Arbeitsgericht asks in substance whether the Directive precludes provisions of domestic law imposing a ceiling on the aggregate amount of compensation payable to several applicants discriminated against on the grounds of their sex in the making of an appointment.
39 As the Court held in paragraph 23 of its judgment in Von Colson and Kamann, the Directive entails that the sanction chosen by the Member States must have a real dissuasive effect on the employer and must be adequate in relation to the damage sustained in order to ensure real and effective judicial protection.
40 It is clear that a provision such as Paragraph 61b(2) of the ArbGG, which places a ceiling of six months’ salary on the aggregate amount of compensation for all applicants harmed by discrimination on grounds of sex in the making of an appointment, where several applicants claim compensation, may lead to the award of reduced compensation and may have the effect of dissuading applicants so harmed from asserting their rights. Such a consequence would not represent real and effective judicial protection and would have no really dissuasive effect on the employer, as required by the Directive.
41 Moreover, it is clear from the order for reference, from the answers to the questions put by the Court and from the explanations given at the hearing that such a ceiling on the aggregate compensation is not prescribed by other provisions of domestic civil law or labour law.
42 However, as the Court has already held, the procedures and conditions governing a right to reparation based on Community law must not be less favourable than those laid down by comparable national rules (Case 68/88 Commission v Greece, paragraph 24).
43 The answer to the question must therefore be that the Directive precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, impose a ceiling of six months’ salary on the aggregate amount of compensation which, where several applicants claim compensation, may be claimed by applicants who have been discriminated against on grounds of their sex in the making of an appointment.
Costs
44 The costs incurred by the German Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Arbeitsgericht Hamburg by order of 22 May 1995, hereby rules:
1. When a Member State chooses to penalize, under rules governing civil liability, breach of the prohibition of discrimination, Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and, in particular, Articles 2(1) and 3(1) thereof, preclude provisions of domestic law which make reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault.
2. Directive 76/207 does not preclude provisions of domestic law which prescribe an upper limit of three months’ salary for the amount of compensation which may be claimed by an applicant where the employer can prove that, because the applicant engaged had superior qualifications, the unsuccessful applicant would not have obtained the vacant position even if there had been no discrimination in the selection process. In contrast, the Directive precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, prescribe an upper limit of three months’ salary for the amount of compensation which may be claimed by an applicant discriminated against on grounds of sex in the making of an appointment where that applicant would have obtained the vacant position if the selection process had been carried out without discrimination.
3. Directive 76/207 precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, impose a ceiling of six months’ salary on the aggregate amount of compensation which, where several applicants claim compensation, may be claimed by applicants who have been discriminated against on grounds of their sex in the making of an appointment.”
Cases Bullying
Kelly -v- Bon Secours Health System Ltd
[2012] IEHC 21 (26 January 2012)
JUDGMENT of Mr. Justice Cross delivered on the 26th day of January, 2012
1. Introduction
1.1 The plaintiff in these proceedings was born on 3rd May, 1947 and is a separated mother, who commenced employment with the defendants by a contract commencing on 17th February, 2003. She was initially working at the defendant’s hospital in Tralee, Co. Kerry, as a temporary/part-time receptionist. At that time she was also working part-time with the local St. Vincent DePaul.
1.2 The plaintiff who represented herself commenced proceedings (which at the time were settled by counsel and with a benefit of a solicitor) by personal injuries summons claiming damages for injury, loss and damage caused by two distinct matters.
1.3 The easiest cause of action to contain is the plaintiff’s claim that on 24th August, 2004, whilst carrying out her duties in the records section of the hospital (to which she had been transferred) she sustained injuries when she twisted her back when carrying files.
1.4 The much more involved and intricate aspect of the plaintiff’s claim is a claim for injury and loss caused by the alleged harassment, bullying, abuse, intimidation and discrimination in the course of her employment with the defendants. The plaintiff brings this claim under the headings of negligence, breach of duty, breach of statutory duty and breach of contract and misrepresentation.
2. The Accident at Work
2.1 The plaintiff gave evidence by way of her extensive opening statement which she then swore to be correct and was subjected to extensive cross examination.
2.2 The plaintiff claims that the volume of her work was enormous, that she was asked to carry out impossible deadlines, she was never given any manual handling training and due to the repetitive lifting and turning, she injured her back. She cried out in pain as to the severity of this and it was witnessed by H.C., the line manager, who subsequently refused to sign an accident report form. Subsequently, in answer to questions from the bench, the plaintiff indicated that they were very short staffed on the day, H.C. was sitting down because she had injured her foot or had some sort of foot problem and there were lots of charts to be put away before any other work would commence. On that particular day, there were maybe over two hundred charts but she was not exactly sure and she was kept being told to hurry up and had to get them done before 9am.
2.3 The plaintiff had collected the charts from the ward, brought them down, logged them and had a very short time to put all the charts onto the trolley and get them back. She would grab a bundle of them and would turn around and put them on the trolley and while she was twisting, she injured the lower part of her back. She was given some painkillers by H.C. and she rang the physiotherapy department and made an appointment for her. She was never given manual handling training before the accident but was subsequently and had she been given that training, she might have been more aware of what to do.
2.4 The defendant did not call H.C. to give evidence who was the only witness but did call the highly respected engineer, Mr. Tony O’Keeffe who had a set of photographs. Mr. O’Keeffe gave evidence that the volume in weights being carried by the plaintiff were not excessive. This, of course, is not the plaintiff’s allegation. He agreed that the manual training regulations were mandatory and that it was a breach of statutory duty not to have such regulations.
2.5 It was argued by Ms. Marguerite Bolger, S.C., at the conclusion of the case that there was not sufficient evidence to show that the plaintiff had her accident or that it was caused or contributed to because of the failure of the defendants (which was admitted) to have proper training in manual handling.
2.6 I have observed the plaintiff, I believe that she is a witness who is inclined to tell the truth as best she can and that her recollection of the circumstances of the accident (which is not challenged) is correct. I also accept that had the plaintiff been trained in proper handling of weights and manoeuvring as is required under the statute, the accident as a matter of probability would not have occurred.
2.7 I therefore hold that it was negligent and a breach of statutory duty on the part of the defendants not to give the plaintiff this training and that this negligence was the principle cause of the accident and the injuries sustained therefrom.
2.8 The plaintiff is entitled to succeed in relation to that aspect of her case and I find there is no contributory negligence on the part of the plaintiff.
2.9 I will discuss the quantum of damages later in this judgment.
3. The Claim for Bullying and Harassment
3.1 I propose to analyse this claim firstly on the basis of the legal principles involved and then proceed to go through the various allegations in turn of “bullying and harassment” made by the plaintiff to assess whether there is liability in respect of them.
3.2 It is important to realise, of course, that there is no separate tort of “bullying and harassment”. The defendant as an employer of the plaintiff owes a duty of care not to expose their employees to injury and one of the sub-aspects of this maybe a question of bullying and harassment.
3.3 It is further important to realise that in this case, the plaintiff is not just complaining of “bullying”. She makes the case that there is breach of contract, bullying, harassment, discrimination and intimidation against her.
3.4 Fennelly J. stated in Quigley v. Complex Tooling and Moulding Limited [2009] 1 I.R. at para. [13] and following:-
“[13] Counsel for the defendant, accepted that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of ‘workplace bullying’ at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:-
‘Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.’
[14] Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
3.5 In this case, of course, the essence of the plaintiff’s case is that the bullying and harassment came not merely from fellow employees but were in effect orchestrated or directed from the management of the defendant’s company or what is sometimes known as corporate bullying.
3.6 I have been referred to the helpful decision of Herbert J. in Sweeney v. Board of Management Ballinteer Community College (Unreported, High Court, 24th March, 2011), in which Herbert J. analysed a number of the instants which the plaintiff relied on in her claim for personal injuries in what she claimed was unlawful bullying and harassment of her by the school principal.
3.7 Some of the plaintiff’s complaints were upheld and others were not. At the outset, Herbert J. set out his view that there had an “escalating mutual distrust” between the plaintiff and the principal as disagreement followed disagreement. He found that:-
“the plaintiff came to believe that every action or omission on the part of Dr. C., whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.”
3.8 In that case, the analysis which I found most helpful, Herbert J. was critical of a number of the aspects of the plaintiff’s conduct but found certain behaviour amounted to bullying and stated:-
“In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.”
3.9 In this case, I came to the conclusion that the plaintiff did hold the same belief as was held by the plaintiff in the Sweeney case (above) i.e. that every reaction of the management of the defendants was directed against her and that even matters that were clearly set out for her benefit were in fact part of a grand design to do her down.
3.10 I was strengthened in that view by certain aspects of the medical evidence (which I will discuss further in this judgment).
3.11 To come to that general conclusion, however, is not to decide the case as the individual actions complained of by the plaintiff will have to be analysed, as was done by Herbert J., in the Sweeney case above, and a decision reached as to whether any of them individually and/or collectively in all the circumstances amounts to bullying and harassment bearing in mind the plaintiff’s other causes of action as pleaded.
3.12 In the United Kingdom, the Court of Appeal clarified the law in four joined stress and work cases and in Sutton v. Hatton [2002] 2 AR 1, the court placed considerable emphasis on the employees obligations to inform the employer of the nature of the difficulties and the fact that the difficulties are having an adverse effect on their health and Hale L.J. set out sixteen propositions for dealing with cases of bullying and harassment.
3.13 Laffoy J. in McGrath v. Trintech Technologies Limited [2005] I.R. 382, adopted these sixteen propositions stating that they are:-
“helpful in the application of legal principle in an area which is characterised by difficulty and complexity, subject, however, to the caveat of Lord Walker in Barber v. Somerset County Council case – that one must be mindful that every case will depend on its own facts.”
3.14 Furthermore as is clear in this case as the allegations relate to what I have described as corporate bullying in the main and as the history of the case indicates the plaintiff bringing numerous grievances to the attention of the management, the issues of the foreseeability and notification to the employers are of less significance here than in the Sutton v. Hatton case (above).
3.15 All in all, I find that the best summary of the questions to be addressed was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
4. The Plaintiff’s Work History
4.1 As stated the plaintiff whose is a married and separated mother commenced employment with the defendants in February 2003 initially as a part-time receptionist. She was at that time working also with the Society of St. Vincent DePaul.
4.2 During her work with the Society of St. Vincent DePaul, the plaintiff complained of bullying and harassment and work stress which was the subject of a separate set of High Court proceedings, heard by me immediately prior to the instant case. In those proceedings, the plaintiff was unsuccessful.
4.3 As some stage in the course of her employment, these defendants became aware of the fact that the plaintiff had suffered alleged stress and had a number of complaints against the Society of St. Vincent DePaul. This awareness culminated in these defendants affording some witnesses to her employers in a case taken by the plaintiff against the Society of St. Vincent DePaul before a Tribunal.
4.4 The plaintiff returned to Ireland from England with her husband whom she had married in 1965. She had three children.
4.5 In 1981 her marriage ended and her ex-husband lived in America and did not provide her with any material support.
4.6 Of relevance in these proceedings, her husband was sentenced to three years imprisonment at Portlaoise Prison for his part in the kidnapping of Mr. Don Tidey in 1983 and on his release in 1987 he immigrated to the United States.
4.7 The plaintiff formed another relationship which lasted for more than 20 years but her partner developed heart disease and died after a debilitating illness in 2008.
4.8 Having commenced work in the reception area, the plaintiff applied for and was given a post in the Record Department commencing in February 2004.
4.9 The plaintiff developed a number of grievances in the course of her work which will be analysed and she sustained the accident discussed above after which she was certified as being sick and subsequently due as she put it to her work stress situation, she again was certified as sick and has not returned to work since 2006.
5. The Plaintiff’s Grievances
(a) The Condition of the Records Department prior to the Plaintiff’s Appointment
5.1 I have considered all the evidence and all the submissions in this case and I have been afforded the assistance of a transcript of the seven day hearing being made available to me (and indeed to the plaintiff) by the good offices of the defendant. I will not attempt to summarise all the evidence but the parts which I believe to be relevant in relation to the plaintiff’s main allegations and grievances.
5.2 The plaintiff complains that whereas when she moved to the records department, the atmosphere was reasonable up to and including the time of her accident, that she was not made aware as a fellow employee, H.B. (who moved to the same department at the same time) was aware, that a significant human relations problem had existed in this department prior to the plaintiff joining it and that it was basically unsafe.
5.3 H.B. was indeed give a “letter of comfort” whereby she could use this letter to change back to any other department before she took up the post. This is because H.B. was aware of certain difficulties at the records department and the plaintiff was not so aware.
5.4 I am not persuaded, however, that the failure of the defendants to give a letter of comfort to the plaintiff was an example by them of bullying and harassment. H.B. was aware of problems in the department, which problems persisted and which problems required the defendant’s best practice manager, F.G., being placed in charge and remaining in charge as acting manager during the period of the plaintiff’s employment.
5.5 However, the fact that F.G. was in charge of the department did place the defendants on notice of what was going on there and gave them an obligation to be particularly stringent in relation to any further bullying.
(b) The hours of the plaintiff’s work
5.6 The plaintiff accepts that her original contract in Reception and indeed when she moved to records was as a temporary part time worker but that it was represented to her that she would in fact get many extra hours and be put in effect in a position as a full time employee.
5.7 This did not occur and was subject of considerable grievance procedures by the plaintiff but I accept the defendant’s contention that at all times, the plaintiff was employed under a contract which provided for a limited number of hours and that she was furnished from time to time with extra hours, and in particular in July 2004, she was granted full time hours by an agreement which specified that this was up to the end of the year. The plaintiff understood that in January 2005 when she went back to part time that she would take up hours of another employee who left.
5.8 In any event, the plaintiff agrees that she was working without difficulty up until sometime after her accident.
(c) The accident and its aftermath
5.9 The plaintiff suffered the accident as described above on 20th August, 2004. She went home and sent her son with an accident report form to be completed. H.C. who witnessed the accident apparently filled out an incident report form which did not specify any accidents such as that complained of by the plaintiff and then the plaintiff returned to work, she noticed the atmosphere had changed.
5.10 In particular, she says (and there is no evidence to contradict this) and I accept that on 29th September, H.C. scratched the plaintiff with her nails which incident the plaintiff reported to her trade union, SIPTU.
5.11 I accept that because of the difference of views between the plaintiff and H.C. in relation to the plaintiff’s accident and in particular H.C. not reporting the incident as an industrial accident (and apparently it was never reported to Health and Safety) and subsequently H.C. not signing the accident report form as it was proffered to her that H.C. who was the plaintiff’s superior was hostile to the plaintiff.
5.12 I also accept that the defendants who were aware of difficulties on the personnel side in the records department and who had their best practice manager, F.G., as acting manager therein were aware or ought to have been aware of this hostility and had notice of it and initially took no effective steps to deal with this and as a result of what occurred, the plaintiff suffered stress.
(d) The application for a permanent position
5.13 A permanent position was advertised internally in the hospital and I am persuaded by the evidence of Mr. Casey of SIPTU on behalf of the plaintiff that the proper procedure ought to have involved only internal candidates being selected from current employees of the hospital. In fact, the plaintiff applied for this position but was not appointed and instead external candidates were.
5.14 These appointments were irregular and contrary to agreed procedures between management and unions. I have not been given any justification for this breach of procedure other than the view of the plaintiff, which I accept, that it was because management were in some way of the view that the plaintiff was “trouble” and wished to do her down or not to see her attain a permanent position for which on the face of it she seemed entitled.
5.15 It is fair to say that the procedure that was adopted by the hospital was most unfortunate in that it led to increased tensions in the workplace, and in particular to the start of the plaintiff’s complaints of bullying and to most of what followed.
5.16 I have come to the conclusion that this amounted to corporate bullying and harassment and discrimination against the plaintiff and resulted in stress to her.
(e) The complaints against the plaintiff
5.17 In November 2004, complaints were made against the plaintiff by Ms. O’.P. and Ms. M.Q. in writing objecting to the conduct of the plaintiff towards these two persons who had applied for and obtained the position which the plaintiff had also applied for alleging, inter alia, that the plaintiff was ignoring them and being rude to them and carrying out conversations about them behind their back.
5.18 The plaintiff alleges that these complaints were in effect manufactured or false or were the product of management or in any event were untrue and part of the bullying against her.
5.19 In particular, the plaintiff objected to a reference in the complaints to the plaintiff allegedly talking about a burning of boats incident in Co. Kerry which was allegedly caused by the IRA.
5.20 It is not my function to analyse the strength or the truth otherwise of these complaints against the plaintiff.
5.21 I do, however, find that the complaints were not orchestrated by the management and came to the management in a manner which required the management of the hospital to investigate them.
5.22 The complaints originally were made in handwritten letters which have been opened to me. The complainants then attended management investigation on 14th December, 2004.
5.23 Subsequent to that meeting, a letter was sent to the plaintiff on “6th December, 2004” but which I accept this date is a typographical error and it should be 16th rather than 6th and although the plaintiff insists that the letter was written before the grievance meeting on 14th, I do not accept that as a fact.
5.24 This letter to the plaintiff from S.H. and F.G. states that:-
“I write pursuant to various complaints which have been received from individual staff members within the medical records department. These complaints clearly outline their concerns with regard to inappropriate behaviour, comments allegedly exhibited/made by yourself and also the issues which you have inappropriately raised with regard to internal recruitment process. Having reviewed all the details of the allegations thus far and having deemed the allegation to be severe in nature, we are now formally requesting you to attend an investigation meeting with a representative of your choice….
This meeting will take place with myself and (F.G.) in the hospital boardroom on Wednesday, 22nd December, 2004 at 11am…”
5.25 The plaintiff very understandably objected and objects to being summonsed to a meeting of complaints against her when the details of these complaints were not given to her.
5.26 Ultimately, the statements of the complainants made to the investigation meeting on 14th December, 2004, were furnished to the plaintiff’s representative. However, Mr. Casey sought copies of the original letters of complaint to management by the complainants. There was great confusion throughout the hearing as to what occurred to these letters and management maintained that they were given by the complainants to their trade union (also SIPTU) and were ultimately produced at a hearing.
5.27 If that is the case, the fact that the original complaints were in the hands of a colleague was not advised to Mr. Casey who was representing the plaintiff and I find that odd but in any event, I do not have to decide that issue of fact.
5.28 Ultimately, a meeting was held on 18th January, 2005, but this meeting was to discuss the plaintiff’s grievances in relation to her not being appointed to the full time position (though being the only internal candidate for it) and to her claim for loss of earnings as a result.
5.29 At this meeting, the plaintiff read out a prepared statement which was taken down by a note taker on behalf of management.
5.30 This statement was typed out and what purported to be the plaintiff’s statement was presented to the plaintiff for signature on 21st January, 2005.
5.31 As far as the plaintiff was concerned the statement she had asked to sign as her own did not reflect what she had said. In a point of fact she indicated that every paragraph in it was inaccurate. She took the advice of her trade union (and Mr. Casey supports her on this) who advised her not to sign the document. She refused to sign the document and in my opinion she was correct in taking that attitude. The statement had originally been presented to the plaintiff for signature on 20th January, 2005 but the plaintiff wanted an opportunity to compare it with her original document which was at home and indicated she would return the following day.
5.32 At the same time, a similar statement was proffered to another employee, H.B. H.B. also refused ultimately to sign her statement as being inaccurate.
5.33 On 21st January, 2005, the plaintiff wrote a letter to B.L. (the assistant hospital accountant/office manager) advising that she had been advised “not to engage in further dialogue” and stating “I believe it (statement) does not reflect accurately and wholly the information I imparted at the meeting held…18th January, 2005…Please contact Mr. Con Casey/SIPTU in order that this matter and correction to same can be facilitated”.
5.34 Following that not unreasonable action, the defendants proceeded to a most extraordinary and in my view unwarranted course of events.
5.35 At approximately 4pm on 21st, the plaintiff who was in the file section of the records department was approached by B.L. (the chair of the panel who had held the meeting) who asked the plaintiff why she was advised not to enter into any further dialogue to get the response from the plaintiff that they were to contact her union. The plaintiff was then told by S.H. that as it appeared that she was no longer willing to cooperate with the grievance panel or H.R. in order to have the grievances (which she herself had invoked) investigated that they were “left with no alternative” but to suspend her from active duty with immediate effect.
5.36 The plaintiff then stated and I accept that she was in effect manhandled from the premises by management and barred therefrom.
5.37 The defendants accept that the plaintiff was suspended (though with pay) and denied that she was “barred” but I accept the plaintiff’s evidence in this matter that as far as she was concerned her suspension and removal from the premises amounted to a barring therefrom and this was communicated to her. It is illustrative that the plaintiff’s fellow employee, H.B., who also declined to sign the grievance procedure statement was not suspended or disciplined or removed from the premises.
5.38 When asked by the court in respect of this discrepancy, the hospital manager, P.G. stated that the plaintiff was the person who was suspended and removed from the premises rather than H.B. because the plaintiff was the one who had raised the grievance!
5.39 I find that the suspension of the plaintiff because she quite properly refused to sign a statement which she found inaccurate and quite properly referred the management to her trade union for clarification and how the matter could be progressed was wrong, a breach of contract and a example of bully and harassment against the plaintiff.
5.40 It is clear and is stated by the manager of the defendant company that the plaintiff was singled out for discriminatory treatment because it was she who had raised the grievance and she who refused to sign.
5.41 The circumstances of the plaintiff’s removal from the premises may have constituted an assault though I am not persuaded on the balance of probabilities that a significant assault took place.
5.42 Though the plaintiff continued to work after this incident when her suspension was raised following trade union protest and the threat of industrial action, I do accept that as a result of this incident the plaintiff has suffered an injury and an actionable wrong which may be classified as breach of contract, discrimination and bullying and harassment.
5.43 Given my other findings of fact, I do not see the suspension of the plaintiff in the manner that it was done and for the reasons that have been stated on behalf of the defendant can be justified as not being bullying due to it being just one single isolated incident.
(f) Post Suspension Grievance Procedures
5.44 The plaintiff finds great fault with almost each of the procedures the defendant’s sought to put in place to resolve her subsequent grievances.
5.45 With regard to most of the matters raised, I do not accept the plaintiff’s contention. I do accept, however, that the defendants were at this stage looking at the plaintiff as being a “trouble maker” and acted in a number of ways unfairly towards her.
5.46 Subsequent to her suspension and then her reinstatement after trade union agitation, the defendants did put in place a number of efforts at investigation and also potentially mediation but these ultimately came to nothing.
5.47 The plaintiff’s trade union representative, Mr. Casey gave opinion that the plaintiff was targeted because of her membership of SIPTU, I do not accept that as being correct and indeed apart from Mr. Casey’s opinion to that effect (which at best of doubtful evidentially) there is no evidence to support the allegation. Indeed there is every reason to suppose that the defendants were well aware that their hospital in Tralee was a trade union employer and they dealt with and liaised with the SIPTU representatives on numerous occasions.
(g) The Rights Commissioner
5.48 The plaintiff’s grievances were referred to the Rights Commissioner pursuant to the Labour Relations Commission and he reported July 2005 in relation to the appointment of five candidates and in relation to the plaintiff’s grievances as to her hours of work.
5.49 The Rights Commissioner recommended that the plaintiff’s contract be extended to 20 hours per week with additional hours to be made available to her and further that the defendants set out in writing a recruitment policy which would be followed for future.
5.50 The plaintiff then appealed the recommendations to the Labour Court in relation to her number of hours. This appeal went against the plaintiff.
(h) The Investigation by Mr. Tom Wall of the Plaintiff’s Bullying Complaints
5.51 It was agreed that the plaintiff’s complaint of bullying be referred to Mr. Tom Wall and he investigated and did not uphold the plaintiff’s grievances except in relation to the allegation that the plaintiff was wrongly suspended and the manner of the suspension.
5.52 Mr. Wall, however, viewed that incident as being an isolated one and that accordingly he did not fulfil the definitions of bullying.
5.53 The report of Mr. Wall was then appealed by the plaintiff to the Rights Commissioner under the Industrial Relations Act. The plaintiff complained that Mr. Wall did not hear evidence from a number of witnesses that she had available to her but rather took evidence on behalf of the plaintiff from herself only.
5.54 The Rights Commissioner decided that Mr. Wall should reconvene his hearing to deal with the issue of the witnesses but there was apparently no change of mind from Mr. Wall.
5.55 After this impasse the issue of the plaintiff’s bullying complaints was by agreement of the parties then referred to another independent third party “Polaris Human Resources” (Polaris) and it was agreed between the parties that Polaris were to investigate without any sight of any previous decisions on this matter.
5.56 Before the Polaris investigation could proceed, J.K. (who had been appointed Human Relations Manager with the defendant in March 2006) wrote to Polaris by email with a copy to a representative of IBEC advising Polaris that “the hospital this morning received correspondence from Patrick Mann and Company solicitors informing us that they are now issuing a High Court personal injuries summons on behalf of Ms. Margaret Kelly.” The plaintiff took the view that that email breached the agreement that Polaris should enter into its investigations without any knowledge of previous developments.
5.57 J.K. in his evidence indicated that he was under the impression that everything should be held in abeyance until Polaris had conducted its investigation and he was prepared to accept this but that he found the proceedings were being initiated and he was concerned that the plaintiff’s issues were being carried on in two different directions at the same time. He stated it was unfair to the hospital that they would have to defend the issue in the High Court at the time when the third recommend that they carry out an investigation.
5.58 In response to questions from the court, J.K. was asked why he wrote to Polaris rather than to the plaintiff or to her union representative or caused a letter to be written to her solicitor if he was annoyed with the plaintiff initiating High Court proceedings. J.K. denied that he was telling Polaris that they were to cease their investigations. He denied that he intended to influence Polaris in their investigations.
5.59 The personal injuries summons dated 28th July, 2006, and I believe it was prudently issued at the time in order to prevent any question of the statute of limitations arising as her grievances commenced in August 2004 with her accident.
5.60 I hold that the sending of an email to Polaris at the time that Polaris would conduct an investigation while not technically a breach of any agreement was clearly intended to be prejudicial against the plaintiff and it was an example of the defendants through J.K. taking a bullying attitude to the plaintiff and it contributed to the stress the plaintiff was suffering.
(i) Mediation
5.61 After J.K’s appointment, I accept his evidence that he came to consider the issue of mediation between the parties. I have had the benefit of observing J.K. giving his evidence and I think that he was a “no nonsense” type of individual. There was a conciliation meeting between the parties organised by the LRC shortly after taking up his position and while new to his job and still on probation as he indicated it was alleged by the plaintiff and her trade union representative, Mr. Casey and also by another employee, E.C., who was a shop steward on behalf of SIPTU that at this meeting J.K. made what were described as threatening gestures towards the plaintiff (and the others on the side of the trade union) by way of pointing his finger in a gun like manner and saying words to the effect that he was the new sheriff in town to clean it out. J.K. agrees that he may have said something about cowboys or Indians but denies strongly that he made any threatening gestures or used his fingers to mimic gun shots.
5.62 I accept J.K’s denial though the witnesses from the plaintiff’s side of the meeting did criticise him for being aggressive. I think that that was probably a conclusion brought about by the tensions between the parties and that J.K. was in fact trying to be light hearted when referring to himself as the “new sheriff in town” or words to that effect. I do not think that constitutes bullying or harassment.
5.63 I do not believe that J.K. when he was still on “probation” would have endangered his position with his employers by aggressively attempting to shoot the plaintiff.
5.64 The plaintiff was, as I see it, concerned that references to guns being pointed were particularly directed against her given her ex-husband’s conviction for terrorism related charges. J.K. may have been aware of this at the time (though he does not believe he was) but I do not accept that his comments or attitude was at this stage motivated by a wish to intimidate the plaintiff by even obliquely referring to her husband’s activities.
(j) A Meeting in the Brandon Hotel
5.65 As part of his mediation attempts, J.K. ultimately met with the plaintiff in the Brandon Hotel in December 2006.
5.66 The plaintiff had gone on sick leave in September 2006 (from which she has not yet returned).
5.67 J.K. states that he was attempting by this meeting to provide “reasonable support” in helping the plaintiff get back to work and trying to resolve the problems and ascertaining what the plaintiff’s concerns were at this stage.
5.68 J.K. identified the plaintiff’s concerns as being her good name in relation to the allegations made against her, a transfer from medical records where she felt that the atmosphere was hostile to her, an opportunity to come back to work at reasonable hours.
5.69 There is a dispute as to where they met on the hotel premises. I accept the plaintiff’s recollection on this matter which is indeed supported by the contemporaneous notes from J.K.
5.70 I do not, however, believe much turns upon that discrepancy.
5.71 Further disputes have arisen between the parties as to what was or was not said in relation to the plaintiff being afforded the service or support of a counsellor. At that stage, the plaintiff was engaging with a counsellor for her stress but it is clear that that counsellor was not known to J.K. who recommended an alternative one.
5.72 Further at the meeting, the plaintiff referred to one of her grievances in relation to her situation in medical records that she did not feel safe there as she believed that bullets had been delivered to the unit in an envelope. The plaintiff contends that J.K. indicated that he had seen these bullets and these were the size of a top of a biro. J.K. indicated, however, that he did not say that he had seen any bullets (because he had not seen any) but may well have said that what he had seen was (as he believes to be the case) the top of a biro in a envelope.
5.73 Whether bullets were or were not delivered to the unit is not necessarily an issue that I have to resolve but the plaintiff and Mr. Casey both believed that management agreed that such bullets were delivered. On balance, I do not believe that real bullets were actually delivered to the hospital in an envelope as a much greater fuss would have had to have been made of the affair including presumably the immediate involvement of the Garda Síochána.
5.74 I think what is important from the plaintiff’s point of view, and which I accept, that she was advised by fellow employees that bullets had been delivered to the department and that either it was being suggested that she was responsible for sending them (with reference to possible connections with the IRA) or that generally the workplace was unsafe.
5.75 I hold that persons in the Record Departments were making reference to bullets in a jocular way which did not amount to bullying and though the plaintiff was upset by this, I view the incident as workplace banter rather than bullying.
5.76 In any event, the meeting at the Brandon Hotel at Christmas 2006, ended with J.K. indicating that he would try to get resolution of the plaintiff’s request to transfer from the Record Department and deal with the other matters. Suffice to say that the plaintiff was very annoyed that J.K. did not respond to her by the first week in January and that further deterioration in the relationship between the parties occurred. I accept, however, that the plaintiff misunderstood what J.K. had said and that what he conveyed was that he would get back to the plaintiff on his return to work sometime in January rather than in the first week thereof.
5.77 I do not believe that the defendants have anything to answer in relation to that meeting.
(k) The Issue of the Plaintiff Allegedly Forcibly Detained in the Hospital
5.78 The plaintiff alleges that F.G., the best practice manager of the hospital, forcibly prevented the plaintiff from leaving the hospital on 23rd January, 2006.
5.79 I have no doubt that the plaintiff believes now that this is the case but I think that her recollection is incorrect.
5.80 F.G. states that on that day, he had a meeting with the plaintiff and O.P. and after the meeting they went to the medical records department and that F.G. asked that plaintiff to clarify a few points from the meeting and that the plaintiff did not want to stay but wanted to go for her lunch and she was asked again would she clarify some points and then “out of the blue” the plaintiff made an allegation that she was being held against her will and that she rang Mr. Casey, her trade union representative and made the same allegation and would not withdraw it even though F.G. denied it and asked her to do so.
5.81 I have been advised by the witnesses as to the layout of the area where the plaintiff alleges that this incident occurred and have no doubt but that the plaintiff is mistaken in her recollection and she was not psychically restrained from leaving on that occasion.
6. The General Position
6.1 I have come to the conclusion that the defendant’s conduct is to be strongly criticised on a number of matters i.e. the behaviour of H.C. towards the plaintiff immediately after the accident, the alteration of normal work practices to open the permanent position to “outside candidates” to the detriment of the plaintiff, the suspension and manhandling the plaintiff out of the hospital after the refusal to sign the statement the interference with the mediation procedures of Polaris, by the defendant.
6.2 I have also come to the conclusion that the plaintiff believes that virtually every step taken by the defendants was an attempt to bully, harass and intimidate her. I have not found that that is the case.
6.3 I believe that the plaintiff’s view is coloured by her personality and the fact that she was clearly a person subject to stress but the defendants were or are ought to have been aware of this fact from a very early stage as they knew her history with St. Vincent DePaul and they knew also of her husband’s career. I believe that accordingly, the defendants must, subject to any defences that they have, be prima facie liable for the above mentioned bullying and harassment of the plaintiff insofar as the plaintiff has suffered an actionable injury as a result.
7. The Defendant’s Defences
7.1 The defendants have in their full defence pleaded contributory negligence against the plaintiff and in particular have criticised her for failing to involve herself in the defendant’s grievance procedure and to engage with them.
7.2 I do not believe that the plaintiff failed to engage in the grievance procedures. The plaintiff clearly did engage with the grievance procedure. She did not accept the results of a number of the hearings/inquiries as she was entitled not to accept but her engagement was at a very high level indeed.
7.3 The fact that the defendants may or may not have good reason to be critical of the plaintiff for not accepting various results is not in my view a sustainable allegation of contributory negligence against the plaintiff. Contributory negligence is to be assessed in degrees of fault for the harm that is occurred under the Civil Liability Act and I do not believe that the defendant has made out a case in those terms.
7.4 The plaintiff is also criticised for failing to respond to the defendant’s offer to transfer and failing to mitigate her loss. I believe that at the time the transfer offer was made, after the Brandon Hotel meeting before Christmas 2006, that the relationship between the parties had entirely broken down and I do not believe the plaintiff should be criticised by way of contributory negligence for that or indeed for failing to mitigate her loss as she was already engaged in counselling at the time.
7.5 The defendant’s contend that the plaintiff cannot proceed with a number of the grievances due to findings made by the LRC and others. It was submitted by Ms. Bolger, on behalf of the defendants that the court not in effect interfere with the various decisions of the LRC and of Mr. Wall and should take judicial notice or indeed was estopped because of them.
7.6 I do not think that such a contention is valid.
7.7 The LRC is a body with a mandate to inquire into various industrial disputes and can make findings in accordance with its limited functions only.
7.8 This is a civil case claiming damages for bullying and harassment, which the LRC was not inquiring into at the time. There is no question of estoppel or res judicata arising.
7.9 Similarly the finding of Mr. Wall which decided that the suspension of the plaintiff though regrettable did not amount to bullying because it was one single instant and did not meet the definition thereof, is in no way binding upon this Court.
7.10 The finding of Mr. Wall does not meet any of the definitions of res judicata, it is not indeed a final determination because the parties agreed that his determination should be set aside in a subsequent investigation being undertaken by Polaris and second of all, it is not suggested when the parties referred the matter to him that Mr. Wall in any way should be able to make a finding which would prevent the parties having access to the High Court.
7.11 Furthermore, the issue of res judicata is not raised in the defendant’s comprehensive defence and the defendants cannot succeed in answering the plaintiff’s claim by raising that issue now.
8. Conclusion on Liability
8.1 In my view, the plaintiff is entitled to succeed in the claim for bullying and harassment and breach of contract for other reasons and on the basis that I have described above.
9. Quantum
(a) The Back Issue
9.1 I am briefed with the report from the plaintiff’s G.P., Dr. Brian Kelly and also the reports supplied by the defendants from Dr. Michael Pegum who gave evidence and Mr. Gardezi.
9.2 Dr. Kelly indicated that the plaintiff suffered an injury and in August 2004 and remained symptomatic for some four weeks despite treatment for analgesia for physiotherapy and was certified as unfit up to 15th September, 2004. She was again seen with a “further” back injury and was advised to refrain from further work for one week. This is clarified by the evidence of the plaintiff and indeed by Dr. Pegum which I accept as not being a separate incident but rather of a pre-existing accident related injury. The plaintiff had suffered an injury to her back in 1998 which the plaintiff says and I accept lasted for a few weeks only and subsequently thereto she had made a full recovery. On that occasion, Mr. Gardezi found spasm in her muscles.
9.3 Up to the accident in August 2004, the plaintiff was and I accept a very active person who went swimming everyday and dancing once a fortnight and did gardening and generally fully participated in any psychical work. She was given an injection of medication by Dr. Kelly and had to take off some further time later. She had some benefit from physiotherapy.
9.4 On examination by Dr. Pegum in May 2011 (six years and nine months post accident), the plaintiff complained of pain spreading from her left buttock to her outer side of her thigh and lower leg which comes from stooping or lifting which she tries to avoid and is brought on by driving or walking for ten minutes or indeed by crossing her left leg over her right when sitting.
9.5 Dr. Pegum was of the view that the plaintiff had a pre-accident degenerative disease consistent with her age which she accepts were made rendered symptomatic prematurely. Dr. Pegum is of the view that were it not for this accident these symptoms would likely to have arisen spontaneously within a number of years.
9.6 I came to the view that the plaintiff was able to carry out a very active life from 1998 when she first had back pain up to the accident and were it not for this accident, she is likely to have been able to work and carry on a normal lifestyle certainly up to retirement stage. Dr. Pegum is of the opinion that the plaintiff could have continued working as long as she did not undertake any heavy lifting or prolong stooping of the back was the only problem.
9.7 It is certainly true that the plaintiff, the absence of her work has been certified in relation to stress in recent times rather than her back. I think, however, that the nature of the plaintiff’s work in the records department was such that it involved standing around for long periods of time and lifting and manoeuvring and shifting files from one place to another and this regime was not very conducive to her back condition and indeed was the source of many of her requests to change work to another station.
9.8 I hold that the plaintiff is likely to go through the rest of her life with the knowledge of a back is less than perfect and which will come against her. It is quite possible were it not for this accident that she would have had some flair up of symptoms at some stage and in those circumstances doing the best that I can I would assess in respect of the plaintiff’s back complaint, damages to include some damages for limitation for work availability at a modest level in the sum of €30,000.
(b) The Bullying Issue
9.9 The plaintiff has an actionable case for damages for bullying, harassment and discrimination arising out of some but by no means all of her complaints. She has sustained an injury rather than acceptable stress to meet the test of Clarke J. in Maher v. Jabil (above).
9.10 I have been furnished with the medical report of Dr. Brian Kelly dated 11th November, 2005, the psychological report of Dr. Jean Lynch of the Anti-Bullying and Research Resource Centre of Trinity College Dublin, Dr. Aidan O’Gara and John Casey, Occupational Health officers on behalf of the defendant, Dr. John Gallagher, Consultant Occupational Physician who supplied a number of reports on behalf of the defendants and Dr. Paul O’Connell, Consultant Forensic Psychiatrist who reported on 11th April, 2007 and also gave evidence on behalf of the defendants.
9.11 I found all of the above very helpful and of great assistance. In particular, I found of assistance the evidence of Dr. O’Connell in relation to the personality of the plaintiff. I make this point notwithstanding the forensic cross examination of Dr. O’Connell by the plaintiff which would have done justice to the most proficient practitioner in the round hall! The plaintiff indeed got a number of admissions from Dr. O’Connell that a number of his conclusions were based upon false assumptions and in particular Dr. O’Connell’s conclusions that the plaintiff would have lived in the United Kingdom in the 1970s with her politically active husband which experience would have been stressful and which she survived, was based upon a false assumption.
9.12 Dr. O’Connell was also incorrect in the date of the plaintiff’s marriage and the number of her children.
9.13 However, Dr. O’Connell does state and I accept:-
“It is possible that Ms. Kelly has a paranoid personality which would confer an increased liability to misconstrue a hostile intent to the comment, behaviour or attitudes of others. It would be useful to have access to independent corroborating information such as her primary care records…”
9.14 I believe that any assessment of the plaintiff must conclude that the plaintiff has indeed come to the view wrongly, that all the actions of the defendants were motivated by some malice against her.
9.15 Notwithstanding that view, however, given the findings I have made previously, it is clear that the defendants, at management level were motivated by hostility to the plaintiff stemming initially from the time of her accident.
9.16 This motivation continued until the plaintiff was frogmarched off the premises which was by any scale of thing an extraordinary insult to her.
9.17 The attitude of the defendants may have been due to exasperation which was understandable but was not (in the manner that I have found above) justified.
9.18 It is correct that the plaintiff did work on after being suspended and removed from the defendant’s premises.
9.19 In his examination of the plaintiff, Dr. O’Connell was impressed by how depressed the plaintiff was and indicated that as far as he was concerned, the treatment she was undertaking was not suitable and she was not being given proper antidepressants.
9.20 In his evidence, Dr. O’Connell indicated that having observed the plaintiff conducting her case, he saw somebody who did not appear to be depressed and indicated that it was possible that the adrenaline of the court proceedings carried her on but in any event her examination in November and her upset arose after a number of very stressful instances in her life including the death after illness of her partner and the death of a number of close members of her family.
9.21 In all the circumstances, it is difficult to untangle the different cause of factors in the plaintiff’s present make up. The defendants must indeed take the plaintiff as they find her but they are not responsible for an underlying condition which they did not cause. They are, of course, responsible for the consequences of their actions which may well have had an effect upon the plaintiff which was greater than it would have been on somebody else.
9.22 In addition, of course, the depressive nature of the deaths in the plaintiff’s family and her partner must be extracted from the equation.
9.23 Mr. O’Connell in his conclusions states:-
“In my opinion, the symptoms which Ms. Kelly complains of are essentially depressive in character and grounded in multiple bereavement. There are a number of alternative causes for these symptoms that are independent of the alleged harassment and bullying at work. It is a matter for the court to determine the facts of the allegations. If the allegations are viewed as wholly or partly true there may have been a synergistic effect leading to a worsening of her condition. In addition there may have a complex interaction between Ms. Kelly, her depression, her behaviour and her perception of the behaviour of others that led to a mutually reinforcing negative cycle that corroded workplace relationships…”
9.24 I accept that analysis.
9.25 Bearing in mind Dr. O’Connell’s professional criticism of his colleagues in the psychological profession, I also accept the conclusion of Dr. Jean Lynch from Trinity when she states:-
“The physiological, psychological and behavioural problems that Ms. Kelly suffers are consistent with those well documented in the literature on stress. This has resulted in heightened levels of anger and anxiety, moderate self esteem, extremely severe levels of somatic symptoms, insomnia/anxiety and social dysfunction, mild depressive symptoms and severe levels of intrusive thoughts in behaviours.”
9.26 Accordingly, I have come to the view that the plaintiff’s acute depressive symptoms are not related to the bullying but the other symptoms are related. I believe that as the trust between the plaintiff and the defendants, has in my view irretrievably broken down, that the plaintiff will not be likely to return to work and that fair award of damages for the severe distress and insult she has suffered to the wrongs attributed to the defendant would be to include past and future general damages to a sum of €60,000.
10. Conclusion
10.1 From the foregoing it follows that the appropriate order to make is a decree in the sum of €90,000 to which the plaintiff would be entitled, on the face of it, to her expenses and outlay.
Nyhan -v- Commissioner of An Garda Siochana & Anor
[2012] IEHC 329
JUDGMENT of Mr. Justice Cross delivered on the 26th day of July, 2012
1. Introduction
1.1 On 19th November, 2006, Ms. Baiba Saulite was murdered at her home at Holly well Square, Swords, Co. Dublin. The suspect for the murder was Ms. Saulite’s former spouse, one H.H. who was at the time in prison.
1.2 The plaintiff was born on 30th June, 1970 and was at all material times and remains a member of An Garda Síochána who resides in Dunboyne, Co. Meath. The plaintiff is a married man with children.
1.3 The plaintiff was attested as a member of An Garda Síochána on 13th February, 1991. In the year 2004, the plaintiff, whilst serving in the Community Policing Department of Swords Garda Station, became involved in an investigation into the abduction of Ms. Saulite’s children from the State by her spouse, H.H.
1.4 Ms. Saulite’s children were removed from the State to a Middle Eastern jurisdiction where the Hague Convention did not apply.
1.5 The abduction was originally investigated by another garda and then the plaintiff’s superior, Sergeant Hughes, was asked to get involved in the investigation and then he requisitioned further help from the superintendent which resulted in the plaintiff being allocated to the team.
1.6 This case was, it seems, the first case of child abduction to be processed under the Non-fatal Offences Against the Person Act 1997.
1.7 Mr. H.H. was arrested and remanded in custody and the plaintiff and the other members of the team made extensive inquiries including telephone calls and new technology to ascertain the location of the children.
1.8 It is clear that the plaintiff, Sergeant Hughes and the other members of An Garda Siochana were engaged on a personal level with Ms. Saulite during the investigation and dealt with her distress. It is also clear that the plaintiff and Sergeant Hughes, through excellent police work, achieved what was undoubtedly a very positive outcome in the case.
1.9 Eventually, a judicial colleague, who has not been identified, with remarkable practicality put as a condition of Mr. H.H’s bail that the children be returned to the jurisdiction.
1.10 The children were returned in the summer of 2005 and Mr. H.H. availed of bail.
1.11 Directions from the DPP to prosecute H.H. in relation to child abduction were received and a trial was set for October 2006. Before the trial came to hearing, a number of distressing incidents occurred. First, on 27th February, 2006, there was an arson attempt on the house of Ms. Saulite’s solicitor, Mr. H., who H.H. alleged was too close to Ms. Saulite. The plaintiff was aware of the arson. There was also an investigation into the matter but the plaintiff had no direct contact with the investigation into the arson as he was concentrating on the abduction.
1.12 Subsequently, the plaintiff became aware that another member of An Garda Síochána was informed through intelligence sources of a direct threat to kill Mr. H. In August, 2006, there was an arson attack on Ms. Saulite’s car which was parked beside her house. This was being investigated by the gardai in Malahide. The plaintiff was aware of this in general but again had no formal contact with this investigation.
1.13 As a result of the arson attack, Ms. Saulite moved house. Ms. Saulite advised the plaintiff and Sergeant Hughes that she was in fear of her life due to intimidation and phone calls H.H. was making while in prison. H.H. was at this stage in prison on other non related matters. Ms. Saulite, however, declined to make any sort of formal complaint to the plaintiff or any member of An Garda Síochána.
1.14 The abduction case against H.H. proceeded to trial and H.H. pleaded guilty and was remanded in custody awaiting a victim impact report which had been requested by the judge.
1.15 On 14th November, 2006, Ms. Saulite visited Sergeant Hughes and the plaintiff in Swords Garda Station with a prepared handwritten victim impact report. The report was handed to Sergeant Hughes, and he glanced at it. He ascertained that the handwritten document was not a proper victim impact report and would not be allowed to be read in court and Ms. Saulite was advised what ought to be the general contents of a proper victim impact report. Neither Sergeant Hughes nor the plaintiff had read the end of the victim impact report at the time but suffice to say the following sentences occurred at the end of the unread document:-
“In my new house I began to get knocks on my door at night time and no one there. I have found I am being followed by car. [H.H.] has told me he knows my new address and where my son is going to school. If I have any relationship will any man I will be very sorry and it would be my fault that the man’s life would be ruined. He constantly blames my solicitors for ruining his life and he will pay for it.
At the moment I am very scared for my life because [H.H.] is blaming me for everything that has gone wrong in his life. All I want is some peace for my children and myself to live a normal life, safe and happy knowing that this man cannot hurt us anymore. My children are becoming bright, happy, intelligent individuals and this is what I wish to continue like.”
1.16 Ms. Saulite gave a copy of this document to Sergeant Hughes who had it photocopied and placed the copy in his locker and Ms. Saulite agreed to write a new report.
1.17 At this meeting, Ms. Saulite also described how she had been visited by an associate of H.H. who advised her that there were threats on her solicitor, Mr. H’s, life. Ms. Saulite phoned Mr. H. who contacted the gardai. The gardai called and interviewed Ms. Saulite and the associate.
1.18 Ms. Saulite informed Sergeant Hughes and the plaintiff that the detectives from Swords were dealing with this incident. She was happy about this. She did not want Sergeant Hughes or the plaintiff to get involved.
1.19 Ms. Saulite advised the plaintiff that she had visited her partner in prison and had told him, that she was now going to refuse to have anything more to do with him that she was not going to bring the children to prison. He was very annoyed by this and he blamed the solicitor and the gardai for what happened to him.
1.20 At this meeting Ms. Saulite stated that she feared for Mr. H. and for Sergeant Hughes and the plaintiff.
1.21 However, when the plaintiff and Sergeant Hughes asked Ms. Saulite for specific information, she indicated she had none and in fact the plaintiff gave evidence that this information did not worry him as he was dealing, as he saw it, with a family law matter and Ms. Saulite did not want to make a formal complaint about her concerns.
1.22 This was the last occasion that the plaintiff saw Ms. Saulite and as stated she was murdered on 19th November, 2006.
1.23 As a result of the above events and the aftermath thereof, which is discussed below, the plaintiff has brought the proceedings herein against the defendants.
2. Pleadings
2.1 The plaintiff by personal injury summons dated 19th December, 2008, initiated these proceedings for damages of personal injury caused by reason of the alleged negligence, breach of duty and breach of contract of employment on the part of the defendants. It is alleged that in breach of the terms and conditions of his employment, he was treated in a “highly inappropriate manner and was subject to intolerable working conditions” whereby the defendants allegedly failed to provide suitable working conditions so that on 27th March, 2007, the plaintiff came under the care of a consultant psychiatrist.
2.2 In the particulars relating to the commission of the wrong, the nature of the plaintiff’s case becomes clear. It is said that by reason of the plaintiffs acute involvement in the abduction investigation which centred on the activities of someone who is a “leading criminal” and that after the events described, the plaintiff feared for his own life and advised the defendants of the stress of the adverse working conditions to which he had been subjected. But the defendants allegedly ignored and disregarded the plaintiff and they failed to provide any reasonable level of help or support or protection to the plaintiff and accordingly the plaintiff felt he was isolated in An Garda Síochána.
2.3 The plaintiff in the proceedings alleges that the actions of the defendants intensified to the point where he was served with “discipline documents” to inquire as to whether the plaintiff was in possession of information or documents which meant he knew or ought to have known at the time of the existence of a real and immediate threat to the life of Ms. Saulite and failed to take measures that might be expected to avoid that risk.
2.4 As a result of this disciplinary inquiry, the plaintiff believed he was being scapegoated. The plaintiff goes on in the proceedings to allege that the first named defendant was engaged in a “cover up” and the disciplinary proceedings were an attempt to protect more senior or other officers who in truth and in fact had and were in possession of specific threats to Ms. Saulite’s life at a much earlier time. The plaintiff characterised the nature of the matters that were being investigated under the disciplinary procedures as an allegation that the plaintiff was guilty of manslaughter.
2.5 The plaintiff alleges that he was not cleared of any wrongdoing until 8th July, 2008, over a year from the commencement of the disciplinary inquiry.
2.6 In 1999 the plaintiff had previously been a victim of a violent attack and had suffered Post Traumatic Stress Disorder (PTSD) and as a result he also suffered other injuries.
2.7 In further, the particulars delivered, the plaintiff lists a number of meetings he had with the various members of An Garda Síochána hierarchy. He alleges that his complaints into his allegations of scapegoating and of being bullied and harassed because these concerns were not properly addressed by the defendants.
2.8 In the further particulars of injuries dated 21st December, 2010, the plaintiff describes four years of “relentless bullying and harassment and isolation by his employers”. He states that his predicament was that he was victimised and scapegoated by management in order to cover deficiencies in An Garda Síochána. He further alleges that the disciplinary action was an attempt to frame him on a false charge which could have been construed as manslaughter and that the plaintiff had repeatedly raised issues which he required to be investigated by garda management but they failed to act upon his complaints.
2.9 On 10th June, 2011, the plaintiff by further particulars stated he applied for aggravated, exemplary and punitive damages. The basis for this claim was that the activities of the defendants were, allegedly, wilfully done calculate to cause the plaintiff injury and damage, that the plaintiff was hatched and pursued with the object of a scapegoating scheme and that the steps taken by the defendant were conscious and deliberate and were conducted in reckless disregard of the plaintiff and wanton abuse of authority. Further allegations are made including abuse of process and that the defendant’s “actions and activities were corrupt and/or were criminal in character”.
2.10 The defendant’s Defence is a full denial of all matters together with a plea of contributory negligence against the plaintiff for an alleged failure to engage with the defendant’s attempts to rehabilitate him.
2.11 After the opening of the case, Ms. Bolger proceeded to withdraw the further particulars of claim of 10th June, 2012.
2.12 Accordingly, the case made on behalf of the plaintiff, was a claim for damages for personal injury arising from what is commonly referred to as bullying and harassment.
3 Bullying and Harassment
3.1 This Court in the case of Kelly v. Bon Secours Health System [2012] IEHC 21 (Unreported, High Court, Cross J., 26th January, 2012), emphasised that there is no distinctive tort of bullying and harassment. Whether the defendant has a contract of employment with the plaintiff does not alter the situation in that the defendants clearly owe a duty of care not to expose the plaintiff to injury. One of the sub-aspects of this duty may be the question of bullying and harassment.
3.2 In the majority of cases under the heading of “bullying and harassment”, the bullying concerned is usually one or more employee of a defendant allegedly bullying the plaintiff.
3.3 In this case, as well as bullying, of course, the plaintiff alleges breach of contract, scapegoating of the plaintiff in order to protect more senior officers and isolating him and ignoring his complaints. In effect, the plaintiff is alleging a conspiracy by the defendants against him.
3.4 In most cases involving bullying and harassment, the key issue to be addressed is whether the employer had or ought to have had knowledge of the activities of employees.
3.5 In Quigley v. Complex Tooling and Moulding Limited [2009] 1 IR 349 at para. 13, Fennelly J. adopted the definition of “workplace bullying” at para. 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as being an accurate statement of the employers obligations as follows:-
“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
Fennelly J. went on to state:-
“Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
3.6 In the plaintiffs case it is clear that all of the allegations relate not to any of the witnesses or management figures who gave evidence but to the first named defendant himself and his agents who were engaged in the alleged campaign against the plaintiff and also that they failed to address the plaintiffs concerns in this regard.
3.7 If the plaintiff proves such a campaign, unlike most plaintiffs in bullying cases, he does not have to establish that any of the activities complained of were known by the first named defendant as he is alleging that it was the first named defendant who was deliberately orchestrating and organising his bullying. Ms. Bolger on behalf of the plaintiff contended that even if the plaintiff is incorrect in his view that there was an orchestrated campaign or conspiracy by the first named defendant, the defendants were still liable to the plaintiff for the manner they dealt with or rather failed to deal with his complaints.
3.8 As I stated in Kelly, in my view, the best summary of the questions to be addressed in a case such as this was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233, as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
3.9 These three questions, so aptly posed by Clarke J. are, as agreed by Ms. Bolger, subject to the pre-existing requirement that the plaintiff establish an actionable wrong in the form of negligence, breach of contract or breach of duty or in this case the quasi conspiracy which is clearly alleged in what has been described as the cover-up. Whether or not any injury results from an actionable wrong is, of course, measured by the standard of reasonableness.
3.10 Rather than proceed through the entirety of the evidence, I think that this case should be best analysed first by dealing with the issue of whether there was a deliberate conspiracy to scapegoat the plaintiff in order to protect senior members of An Garda Síochána who were allegedly aware of specific threats against Ms. Saulite which they allegedly ignored. Second, irrespective of the answer to the first issue, I will consider whether the responses of the defendants to the plaintiff and his concerns and their relationship with him in dealing with these concerns amounted to a breach of their duty of care so that it is an actionable wrong. Finally, I must consider the nature of any injury suffered by the plaintiff, as the plaintiff contends that the defendants’ bullying or negligence or breach of duty included the manner in which they addressed the injuries or illness of the plaintiff. Before I embark upon this analysis I will briefly deal with the plaintiffs past experiences in An Garda Síochána.
4 The Plaintiff’s Previous History
4.1 As stated above, the plaintiff joined the force in 1991. He sustained an injury in the course of his duties. In 1999 he was involved in a violent fracas working as a garda in Dundrum. Some eighteen gardai were involved in the arrest of a violent suspect appear to point a gun at the gardai. The suspect indicated that he was HIV positive and then blood was sprayed and an attempt was made to set fire to an aerosol canister fully of gas.
4.2 As a result of this incident, the plaintiff suffered PTSD, was tested for AIDS this was negative, nevertheless he came under psychiatric care. He suffered panic like symptoms, admitted to an increasing alcohol consumption and reported to Dr. Shanley, Psychiatrist, that his superiors were monitoring him closely and his work atmosphere was unfriendly. Subsequently there was an incident in which allegations were made that the plaintiff had used his baton excessively and a file was sent to the DPP in relation to his behaviour. The plaintiff advised Mr. Michael Dempsey, a senior clinical psychologist, that he was aggrieved by this incident and other matters and felt he was being harassed in work by his superiors. He reduced his alcohol consumption and returned to normal duties of his own accord.
4.3 The plaintiff subsequently was transferred to the Swords Garda Station and was on community policing duties which he enjoyed.
5 Did the defendants scapegoat the plaintiff in order to hide a prior knowledge of distinctive threats on Ms. Saulite
5.1 The plaintiff heard of the murder on Sunday night when he got a phone call from Sergeant Hughes. He was clearly shocked when he received a further phone call from his local superintendent to advise him that he was being offered garda protection. The plaintiff did not know why he was being given this protection but it since transpired that Sergeant Hughes had indicated that this should be done.
5.2 The next day, the plaintiff went to Swords Garda Station. There was a murder conference going on, however, neither the plaintiff or Sergeant Hughes attended. The plaintiff suggests that he was not invited and was being kept “out of the loop”. But it is clear that the plaintiff could have attended but did not. I fully accept that the plaintiff was still in shock as the plaintiff and indeed Sergeant Hughes had clearly been closely involved with Ms. Saulite and were shocked that somebody for whom they rightly believed that they had performed their duty magnificently had been murdered.
5.3 It was on this occasion that the plaintiff heard about Ms. Saulite’s concerns as to her safety as contained in the last sentence of the draft victim impact statement when it was read by Sergeant Hughes.
5.4 Sergeant Hughes subsequently advised the plaintiff that Detective Inspector O’Sullivan had told him that protection had previously been sought for Ms. Saulite in view of information that was in possession of An Garda Síochána but that this protection had been refused for Ms. Saulite and her solicitor, Mr. H.
5.5 The now Detective Superintendent O’Sullivan swore, and I accept, that he was concerned for Sergeant Hughes who was upset and stressed. He apparently did indicate that there had been reports in relation to threats to Mr. H. but that he had no specific information in relation to reports of specific threats against Ms. Saulite immediately prior to her murder and did not suggest to Sergeant Hughes that he had any specific information of threats against Ms. Saulite or that protection had been refused for her.
5.6 I accept that Sergeant Hughes believed that he had been told by Inspector O’Sullivan that the gardai were in possession of threats to Ms. Saulite but I believe that Sergeant Hughes is incorrect in his recollection, no doubt due to the extreme stress he was under at the time.
5.7 At a very early stage in the matter, I believe that the plaintiff and Sergeant Hughes both became convinced that because of what had been stated by Ms. Saulite at the end of her draft victim impact report and the fact that it had not been read by either Sergeant Hughes or the plaintiff, that they would be scapegoated by the garda authorities in order to cover up for what they believed to have been a failure by the garda authorities to provide protection to Ms. Saulite in respect of direct threats which the authorities were aware.
5.8 This belief is, in my view, the core of all that has occurred since then. Sergeant Hughes was of similar belief and initiated separate proceedings which have been compromised.
5.9 On 21st November, 2006, the day after the plaintiff first became aware of the content of their draft victim impact report, the plaintiff reported sick and unfit for duty. He had consulted his general practitioner the previous evening. He was very shocked about the contents of the victim impact report and of what he heard and understood, Inspector O’Sullivan had said about protection having been refused to Ms. Saulite. He also said he was shocked in relation to the protection on his house that he was worried for himself and his family and the threat he feared from H.H.
5.10 The plaintiff together with Sergeant Hughes requested through Sergeant Kavanagh, the Sergeant in charge of Swords Garda Station that a threat assessment be made on him.
5.11 On 22nd November, 2006, a press release from An Garda Síochána in relation to the murder of Ms. Saulite referred to threats against Mr. H. and stated that he had been given extensive crime prevention advice and Ms. Saulite had also been given advice regarding her property and personal safety.
5.12 The statement went on to state:-
“At no time, prior to her tragic death were gardai aware of any specific threat against the life of Ms. Baiba Saulite and no complaints were received by gardai for any person in this regard.
As part of the murder investigation inquiries are ongoing in the Hollywell area and the gardai have now learned that Ms. Saulite expressed concerns to friends and neighbours regarding her safety. We have also established that in the course of preparing a document for court use the sentencing of her husband, Ms. Saulite expressed concerns for her safety and appeared to be somewhat in fear of him.
The Garda Commissioner is now examining when and to whom this information was known.”
5.13 The plaintiff and Sergeant Hughes were of the view that this statement was an example of them being scapegoated as being the only two members of the force who would have possibly had knowledge of the victim impact report. In view of my findings, I do not believe any scapegoating was involved in the press statement. The only possible reference to direct threats to Ms. Saulite was in the draft victim impact report.
5.14 The plaintiff was then concerned that without notice to him, the protection that had been afforded to his house was removed.
5.15 The plaintiff seems to believe that this was removed as part of a campaign by the authorities against him but there is no evidence to support such a belief.
5.16 I must conclude that the protection was removed after the garda authorities came to the conclusion that there was no significant threat against the plaintiff. It is unfortunate that the plaintiff was not advised of this fact until much later in time.
5.17 Following the press statement, Inspector Mangan was requested to carry out a fact-finding investigation to report the level of knowledge in the possession of the gardai prior to the murder.
5.18 This report concluded that Sergeant Hughes had visited Ms. Saulite at her home in October and found her distressed as she was being intimidated by H.H. from prison but that she did not want to make a formal complaint.
5.19 The report further found that 14th November, 2006, Ms. Saulite met with Sergeant Hughes and the plaintiff to furnish the draft victim impact report with the consequences as outlined above.
5.20 Inspector Mangan concluded that Sergeant Hughes and Detective Sergeant Mangan had submitted a comprehensive report dealing with the deceased, and the plaintiff had also put in a report. Inspector Mangan reported that none of these persons were in possession of specific threats against her and that she had not made a formal complaint to any member. Inspector Mangan also concluded that the handwritten document submitted would not constitute a proper victim impact report and could not have been accepted by the courts. Inspector Mangan concluded that Sergeant Hughes and the plaintiff “completed a complex investigation in a very professional manner”. Having made that conclusion, he ended by stating:-
“There certainly was knowledge in existence available to the gardai in relation to threats from (H.H.) to Biaba Saulite. The members of An Garda Síochána involved with Biaba Saulite readily admit this in their reports. To clearly outline the facts in existence, I respectfully suggest that the matter be formally investigated.”
5.21 Following form this report, Chief Superintendent Phelan was appointed to investigate possible breaches of discipline on the part of Sergeant Hughes and the plaintiff.
5.22 The plaintiff was then served with a notice under Regulation 9 of An Garda Síochána (Discipline) Regulation 1989, advising that Superintendent Phelan had been appointed investigating officer and investigated the possibilities that he may have been in breach of discipline as follows:-
“It appears that you were in possession of documentation and information as a result of meetings with Ms. Baiba Saulite, and being in possession of same you ought to have known at the time of the existence of a real and immediate risk to the life of Ms. Baiba Saulite, and failed in your duties to take measures that might have been expected to avoid that risk.”
5.23 The plaintiff apparently was advised by his legal advisers that this disciplinary investigation was akin to being charged with the manslaughter of Ms. Saulite. The court finds that advice extraordinary as the plaintiff was never charged with any offence. Superintendent Phelan was merely investigating the possibility of an offence as he was obliged to do under An Garda Síochána (Disciplinary) Regulations.
5.24 This investigation followed the Mangan report which while exonerating the plaintiff had also recommended that a formal investigation be made of the extent of knowledge of members concerned.
5.25 The plaintiff states and I accept that he believes that this investigation was again part of the scapegoating of the plaintiff and Sergeant Hughes but in the view of the court the investigation cannot be seen in that light and clearly cannot be seen as a charge of manslaughter or indeed of any charge against the plaintiff.
5.26 The Regulation 9 notice was served on the plaintiff on 18th June, 2007 and on 8th July, 2008, Superintendent Phelan concluded that there was no evidence to suggest that the plaintiff was in possession of documentation or information or that he knew or ought to have known of the existence of a real and immediate risk to the life of Ms. Saulite or had failed in his duty.
5.27 It is unfortunate that this report which entirely vindicated the plaintiff took over one year to be finalised.
5.28 The plaintiff complains that the one year delay was part of a campaign against him. The court does not accept that fact. The court is aware that investigations do take time and that the gardai have many calls on their resources.
5.29 The court, however, fully accepts that having the possibility of disciplinary charge hanging over the plaintiff for a period such as it was could well have added to any medical distress or depression that the plaintiff was suffering.
5.30 The court could only conclude that the disciplinary investigation was improperly carried out if it concluded that its purpose was in order to protect members of the gardai or senior management who had specific threats to the life of Ms. Saulite which they had failed to act upon. The failure to conclude the investigation until July 2008, while unfortunate, was not a breach of any duty owed to the plaintiff.
5.31 The court is not of the view that any case has been made out that senior garda management or gardai were aware of specific threats against Ms. Saulite prior to her murder.
5.32 At an early stage of the child abduction investigation, Ms. Saulite had expressed fears in relation to H.H. but subsequent to those fears, there had been an apparent reconciliation between the parties, the plaintiff and other members of the force indicated that frequently in matrimonial type disputes, some party may express fears for their safety but if reconciliation is achieved these matters are not in fact problematic. The court also accepts that Ms. Saulite did make reference to fears for her safety in the draft victim impact report. However, neither Sergeant Hughes or the plaintiff are to be blamed for any failure to read victim impact report. Ms. Saulite indicated that she did not want to make formal complaints at that stage.
5.33 The garda authorities were also aware of specific threats to the life of Mr. H. and had initiated protection for him.
5.34 Furthermore, the garda authorities, and indeed the plaintiff and Sergeant Hughes were aware of the arson attack on Ms. Saulite’s car and that an individual who was an associate of H.H. had been questioned by the gardai in Ms. Saulite’s property but again the focus of the threats were not on Ms. Saulite but on Mr. H.
5.35 It is the court’s view that the focus of the plaintiffs belief which is by now unshakable centred around understandable but over scrupulous guilt on his part that he might have done more had he read the victim impact report and also the misunderstanding by Sergeant Hughes of Inspector O’Sullivan’s statement to him on 20th. The plaintiff was also focused on a realisation of the potential for violence from H.H. and the various threats for which H.H. had been responsible, both against Mr. H. and, indeed, against the plaintiff himself.
5.36 The plaintiff’s belief in relation to knowledge of specific threats among the higher ranks of the gardai was further strengthened when he returned to work and believes he saw among files in the office, references to various threats to Ms. Saulite. The plaintiff, however, could not be specific in relation to what these matters were and there is no evidence that any files were in existence that have not been made available to the court or that any of the files indicated a specific threats to Ms. Saulite prior to her murder.
5.37 The plaintiff was further undoubtedly strengthened in his belief as a result of a consultation which was attended by Garda Walsh and his solicitor and then senior counsel who were also acting for Sergeant Hughes in his case.
5.38 The court heard evidence from Sergeant Hughes’ then senior counsel as well as his solicitor. They attended a consultation with Sergeant Walsh and he stated that he had been made aware from an intelligence source of specific threats against Ms. Saulite from H.H and had conveyed these reports to his superiors.
5.39 Sergeant Walsh in evidence denied that he had made such statements at the consultation and reiterated what he said at a subsequent consultation that he had only been advised by his informant of threats to Mr. H., the solicitor.
5.40 While undoubtedly a statement by Sergeant Walsh that he had been aware from an informant of specific threats to Ms. Saulite and had made this knowledge available to his seniors was precisely the sort of information that the solicitor and counsel for Sergeant Hughes would have been delighted to hear at consultation, I do not believe that they misheard Sergeant Walsh. I believe that at the consultation attended by Sergeant Walsh that he did indeed tell them that he was aware of threats against Ms. Saulite from his informants.
5.41 That, however, does not end the matter because I believe that when Sergeant Walsh advised solicitor and counsel of this fact, he was confused and mistaken. He was not aware of the precise purpose of the consultation and has no notes or file or statement in front of him.
5.42 I believe that he misheard or misunderstood the questions that he was asked and gave the wrong impression that he was in possession of information of specific threats against Ms. Saulite as in fact he was not.
5.43 I have studied the report marked “secret” of Garda Walsh dated 11th October, 2006, in relation to confidential information, given by an informant and it is clear that this secret report which gives specific details of an individual who had been hired to murder Mr. H. and all of the details relate to Mr. H, none of the details and no information in the secret report relate to Ms. Saulite.
5.44 I do not believe that Garda Walsh either perjured himself in evidence or that a top secret report was doctored for the purpose of this trial by senior management in order to give the impression that the only person referred to therein was Mr. H.
5.45 Accordingly, the court does not accept that the gardai were in possession of information of specific threats to the life by Ms. Saulite prior to her murder.
5.46 The only information of a possible threat was of that contained in the victim impact report but this threat was not specific and, as was concluded in the various inquiries, no blame should attach to either Sergeant Hughes or the plaintiff for their failure to read the document.
5.47 It follows from the above that as there was no specific threats known to the gardai at senior level that there were no basis for any cover up or scapegoating of the plaintiff. The plaintiff is fundamentally in error in relation to this belief.
5.48 The court is of the view that it is very unfortunate that the plaintiff carne to the fixed idea that there was in fact a conspiracy against him in order to protect senior members of An Garda Siochana. The court accepts that these allegations were made in the pleadings due to the plaintiff’s sincere belief and clearly on his instructions. The plaintiff stated in evidence that he carne to fear as much the persecution and indeed the criminality (planting evidence in his home etc.) from the defendants as any violence or threats by H.H. This attitude clearly and understandably affected the responses of the defendants to these proceedings and in these proceedings. The court believes that the particulars delivered on 10th June, 2011, escalated the situation. The court is pleased that these particulars were withdrawn prior to any evidence being given. Had the case been conducted merely as to the manner in which the defendants dealt with the plaintiffs concerns, the court is of the view that the issues involved would have been considerably less intractable. The court notes the goodwill towards the plaintiff personally as stated in the case by and on behalf of the defendants and accepts that this goodwill is genuine. The court also notes that whatever about the past, the plaintiff now has expressed a desire to return to the force as soon as possible and again accepts this desire as genuine.
5.49 These conclusions, however, do not end the matter as the plaintiff clearly also makes the case that the manner in which the defendants dealt with his concerns amounted to negligence or bullying and harassment.
6 The manner in which the defendants dealt with the plaintiff’s concerns
6.1 In Garda Nyhan’s case, I have come to the same conclusion that I came to in the Kelly case (above) and that Herbert J. came to in the case of Sweeney v. Board of Management of Ballinteer Community College (Unreported, High Court, 24th March, 2011) that the plaintiff came to believe that almost every reaction of the management was directed against him and even developments that seemingly were for his benefit were in fact part of a grand design to bully or harass him and if not part of a grand design to injure the plaintiff, were so carried out that as a matter of fact they contributed to an exacerbated his injuries. Of course, to so conclude is not by any means the end of the matter.
6.2 It is necessary to deal with the plaintiffs main concerns in order to ascertain whether the defendant’s response to them either individually or collectively represented a breach of the duty of care the defendants owned to the plaintiff. In taking this approach, I will not, of course, be able to list all the evidence of each interaction between the plaintiff and the defendants.
6.3 On 29th November, 2006, the plaintiff addressed the Commissioner of An Garda Siochana advising him:-
“I now have serious concerns for my personal safety and those around me. I request that something be done in relation to this…”
6.4 Following this letter which the plaintiff accepts was unorthodox, he received a visit from Sergeant Tim Troy in charge of local crime unit of his district.
6.5 The plaintiff outlined his concerns to Sergeant Troy but believes that nothing was done about it and some days later he noticed the protection of his house was withdrawn.
6.6 On 3rd December, 2006, the plaintiff gave a written report of a suspicious telephone call made to his old family home in Blackrock, Co. Dublin which was answered by his mother and the plaintiff stated “the caller asked my mother ‘do you know Declan’. My mother replied ‘Declan who’. The caller then asked ‘Declan Nyhan, does he live here, is this his home?’ the reply was given as no and the caller then hung up”. The plaintiff indicated that his mother was concerned about this and so was he and requested that the matter be investigated.
6.7 The plaintiff made a number of requests that this matter be dealt with over the coming months and indeed years and it was not until February 2009 when Inspector Hanrahan who had been reminded about the matter at a meeting with the plaintiff and his solicitor in the solicitor’s office towards the end of 2008, advised the plaintiff that the phone number had been traced and gave certain details to the plaintiff indicating that there was nothing to worry about. It should be noted that Inspector Hanrahan’s attempted reassurance did not in fact reassure the plaintiff and there is some, I think not very significant, difference between Inspector Hanrahan’s and the plaintiffs recall as to the precise details of the caller to the plaintiffs mother which were given to the plaintiff.
6.8 It is clear that Inspector Hanrahan once he got involved was able to quickly trace the number and attempt to put the plaintiff at his ease. I am advised by Inspector Hanrahan that there is always a long delay in relation to obtaining such information from the telephone companies even in murder cases but I do conclude that the delay in this case was unacceptable.
6.9 I believe that, in fact, the defendants who had clearly concluded very early on in the matter that there was no threat to the plaintiff from H.H. did not pay sufficient heed to the plaintiffs concerns about the telephone call.
6.10 This failure though regrettable does not, in my view, amount to a breach of any duty of care of the defendants to the plaintiff nor could it be said to be an incident of bullying and harassment or negligence. The defendants were aware of the plaintiffs stress and injury but I hold that they reasonably believed that they had sufficiently reassured the plaintiff.
6.11 The plaintiff, also at his request had a meeting of a reasonably short duration with the garda welfare officer. The plaintiff had limited further engagement from the garda welfare office, with the exception being a contact around one Christmas in relation to financial difficulties. The plaintiff feels that he was ignored by the welfare office but the welfare officer indicated that it was, in effect, up to the plaintiff to request assistance.
6.12 Nevertheless, certain suggestions to the welfare officer from his seniors that he contact the plaintiff were not followed through. Again, I do not believe that this constituted a breach of duty on the part of the defendants or any manifestation of bullying and harassment by them. If the plaintiff wanted to engage with the Garda Welfare Officer, this service was available to him.
6.13 The plaintiff made repeated requests that a threat assessment be made for him. Subsequently, he stated that he required a written threat assessment but clearly was orally advised at a meeting with Superintendent Curran on 10th May, 2007 that there was no intelligence relating to any threats against him emanating from H.H. Chief Superintendent Curran stated in evidence, and I accept, that he viewed the plaintiffs position was becoming entrenched and that nothing Chief Superintendent Curran could say would change that perception.
6.14 It was submitted on behalf of the plaintiff that he was entitled to what is described as a “risk assessment” under the provisions of s. 19 of the Safety, Health and Welfare at Work Act 2005.
6.15 Section 19 provides:-
“(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a ‘risk assessment’) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions.”
6.16 It is the view of the court that the plaintiff insistence on a written safety assessment in this regard is misconceived. Risk assessments as required by s. 19 are applicable to An Garda Síochána as well as other employers.
6.17 The requirement for a “risk assessment” in writing relates to perceived hazards in the workplace. “Risk assessments” have no relevance to the ascertaining by the members of An Garda Síochána of risks of a particular threat of violence to the plaintiff in operational terms. Members of An Garda Síochána are frequently “at risk” as a result of their dealings with dangerous criminals. The concept of a health and safety requirement for a “risk assessment” plays no part in any ascertaining of such operational risks or hazards to the members of the force. It would be to do violence to the language of the statue and indeed to commonsense to hold that s. 19 had any application to the plaintiff’s situation.
6.18 In this case, the plaintiff was given repeated assurances on behalf of the defendants that there was no risk to him. This represents the defendants’ proper response to the plaintiff’s requests that any threat to him be ascertained. The plaintiff declined to accept these assurances. The court does not believe that had any of these statements been conveyed to the plaintiff in writing that he would have been any more reassured by them.
6.19 On 2nd April, 2007, the plaintiff returned to work having been advised by a security report immediately after the murder that he should vary his route to and from work and comply with other security considerations.
6.20 He returned to normal duty but after a few weeks his anxiety levels built up and took sick leave on 15th May, 2007. It should be noted that this was some five days after the above meeting with Superintendent Curran when he had tried to reassure the plaintiff that he was not under any threat.
6.21 It was subsequent to the plaintiff going off work on this occasion that the disciplinary process discussed above was served on him.
6.22 On 25th March, 2008, the plaintiff lodged a formal complaint of bullying and harassment under the defendants’ procedure.
6.23 This complaint firstly was on the basis that the investigation into what information was known to the gardai prior to the murder of Ms. Saulite focused solely on the meeting that Ms. Saulite had with the plaintiff and Sergeant Hughes on 14th November, 2006 and as a result of that focusing the plaintiff believed he that he was being victimised. The plaintiff also complained in relation to the nature of the disciplinary inquiry and the questions he was being asked.
6.24 The plaintiff specifically notified the defendants of his concerns:-
(a) that prior to the murder the gardai had gathered intelligence and forward the same to garda authorities relating to the threats to the life of Ms. Saulite;
(b) that members of An Garda Siochana had visited Ms. Saulite in weeks prior to her murder and advised her regarding threats and personal safety;
(c) that these members recommended that protection be placed on Ms. Saulite and forward same to garda authorities;
(d) that on 16th November, 2006, a member of An Garda Siochana took a written report detailing the concerns of Ms. Saulite which was forwarded to garda authorities; and
(e) that based on all of this information, members of senior rank within the garda authorities knew or ought to have known at the time of the existence of real immediate risk to the life of Ms. Saulite and failed in a duty to take measures that might have been expected to avoid that risk.
6.25 The court has already dealt with the knowledge of An Garda Síochána in particular the plaintiff is incorrect that members of An Garda Síochána had visited Ms. Saulite, recommended that protection be placed upon her.
6.26 The plaintiff also complained that none of the above information was at his disposal prior to her murder. In fact the plaintiff was generally aware of the situation concerning Ms. Saulite during his dealings with the child abduction issue and any failure to make him more informed or to better coordinate the various matters being investigated, while probably regrettable in hindsight from the point of view of the cohesion of the investigations, do not represent any breach of any duty of care by the defendants owing to the plaintiff.
6.27 The plaintiff’s second general complaint was that he had reported sick and unfit due to work related stress on 21st November, 2006 and since that date he had reported his concerns to member of garda management, including the Commissioner and did not receive a satisfactory reply. He then said that he was cut off and that no determination had been made by management in relation to his illness been attributable to the execution of his duty and that this delay is added to his concerns. The treatment by the defendant of the plaintiff’s illnesses and medical issues will be dealt with in a later section.
6.28 On 9th April, 2008, the plaintiff was again informed, this time by Inspector Hanrahan that as a result of a detailed examination of the murder file that there was no threat to him but again the plaintiff did not accept this.
6.29 On 15th July, 2008, the plaintiff attended a meeting with Superintendent Curran and was advised that his complaints did not come within the ambit of the bullying and harassment policy. The court is of the view that the decision by the defendants in this regard was not unreasonable as the plaintiffs complaint, as recounted above, relates to concerns of a conspiracy or a “cover-up” and did not tie in with the conventional view of bullying which in the Garda procedures seems to relate to the bullying of one member of the force by another or others and not to the activities of which the plaintiff complains.
6.30 As stated two days later on 17th July, 2008, the plaintiff was advised by Inspector Hanrahan that the Assistant Commissioner was satisfied that there had been no breach of discipline disclosed against him and that in accordance with Regulation 10(2)(a) of the 1989 Regulations the proceedings against him were discontinued.
6.31 Subsequently there were a number of meetings between the plaintiff and various senior members of An Garda Síochána up to the rank of Chief Superintendent, in which the plaintiff either alone or in conjunction with members of the Garda Representative Association (GRA) brought his concerns to the defendants. These concerns were similar to what had gone before. In all of the various meetings between the plaintiff and the defendant the plaintiff generally, if not invariably, brought these concerns to the attention of his superiors by a written statement. The defendants took the view that the plaintiff should put the matter behind him and he would be accommodated in order to facilitate his return to work. The plaintiff makes a number of points which will be discussed in the section dealing with the plaintiffs medical situation to the effect that the defendants were wrong to have this focus on the future and ought to have addressed the plaintiffs past concerns.
6.32 The court is of the view that the defendants’ attitude was that the plaintiffs concerns had been dealt with. The disciplinary investigation had been discontinued and the plaintiff had been exonerated. Indeed, the plaintiff had been repeatedly advised that there was no threat against him. The plaintiff was also advised that senior gardai were not aware of any specific threats against Ms. Saulite. The plaintiff was not prepared to accept the defendant’s contentions in this regard.
6.33 In November 2009, the plaintiff agreed to return to work. He had been offered the option of a “easy” job or a posting elsewhere but he chose to go back to his former position of community policing. On the plaintiffs first day back he went about collecting his uniform with his senior officer and on second day he was put to office work. He says that at this stage he came across a number of files in the offices of the garda station relating to the murder which reinforced his belief that members of An Garda Siochana of a senior rank had prior knowledge of specific threats to Ms. Saulite. The plaintiff did not state the nature of these files.
6.34 The plaintiff states that his superior officer advised him that he would be required to drive a “riot van” that Friday evening.
6.35 The court had heard the evidence from the plaintiff and from his superior officer, and the court accepts, that the plaintiff was not asked to drive “a riot van”. He was asked to drive a van. This was a normal part of community policing. It may have involved the plaintiff interacting with intoxicated young members of the public and may have involved him working late into the night. However, the court also accepts that the plaintiff never made any concerns in this regard known to his superiors. However, the plaintiff did report sick and unfit for duty and has remained out of work since that time.
6.36 The plaintiff’s attempts to invoke the bullying and harassment procedure were resisted by the defendants on the basis that the complaints did not amount to bullying and harassment. The plaintiff then made written complaints invoking the grievance procedure and made further written complaints at various meetings as described above.
6.37 As previously stated, the court is not of the view that any of the actions by the defendants in dealing with the plaintiff’s various complaints amounted to a breach of duty by the defendants to the plaintiff. It is, of course, possible that the defendants could have come to an operational conclusion that protection ought to have been given to Ms. Saulite. Even if there may have been a lack of coordination in the defendants dealing with the matter, this Court is not of the view that any of this represented a breach of duty to the plaintiff or that it amounted to bullying and harassment of the plaintiff or that the manner by which the defendants dealt with the plaintiffs complaints was not adequate in the circumstances.
6.38 In the view of the court, the defendants dealt with the plaintiff’s complaints by attempting again and again to reassure him that there were no threats against him and that there was no prior knowledge among the gardai of direct threats to Ms. Saulite.
6.39 Again, as previously stated, to come to this conclusion, is not to end the matter as the plaintiff also has specific concerns and objections to the manner in which the plaintiffs medical situation was dealt with and in particular alleges that the defendants acted in breach of their own medical advice in the way that they dealt with the plaintiff and also failed to apply proper procedures when they judged that the plaintiff was not entitled to any further sick pay.
7 The issue of the plaintiff’s illnesses
7.1 As has already been stated, the plaintiff sustained significant post-traumatic stress injury after a upsetting potentially life-threatening event in July 1999. In that instance, the plaintiff was treated by Dr. David Shanley, psychiatrist; his GP, Dr. Bent, who continued to treat him as a result of the accident the matter of these proceedings, and Mr. Michael Dempsey, senior clinical psychologist. It is clear that the plaintiff suffered a significant post-traumatic stress disorder, anxiety and depression with some views of resentment against his superiors in relation to the manner that they handled his injury. The plaintiff reported to Mr. Dempsey that he consumed up to four bottles of wine a night and Mr. Dempsey was of the view that his alcohol consumption could account for the symptoms of anxiety and depression. He reduced his alcohol consumption and was encouraged back to work. In March 2003, his GP described him as fully recovered. There is no basis to suggest that as a result of the 1999 incident that the plaintiff ought not to have been given the duties that he was given after his return to work. The plaintiff was, on all the evidence, fully fit. It is indeed possible that as a result of the 1999 incident he became and remained more vulnerable to stress however, he reported fully fit for work and it is on that basis that he must be assessed.
7.2 The best evidence from the medical experts in relation to the incidents that form the subject matter of these proceedings is that the plaintiff suffered panic attacks, depression, what was described by Dr. McCormack “over valued ideas” which are not uncommon in severe depression, and/or possibly, as suggested by Professor Casey, paranoia and maybe a full-blown psychotic disorder known as ‘Persistent Delusional Disorder’. The plaintiff was referred by Dr. Bent initially to Dr. Ian Daly, psychiatrist, but because of some delay in Dr. Daly being able to see the plaintiff, the plaintiff, was referred through the offices of his solicitor, to Dr. Michael Corry, psychiatrist, immediately after Ms. Saulite’s death.
7.3 Dr. Corry has since died, his reports have been agreed. Dr. Daly has not been called to give evidence. However, his reports have been put into evidence.
7.4 The plaintiff was also initially examined on behalf of the Chief Medical Officer (CMO) of the An Garda Síochána by Professor Anthony Clare and after the death of Professor Clare, by Dr. Cian Denihan. The court has had the benefit of the reports from these individuals. The plaintiff was also examined on behalf of the defendant for these proceedings by Professor Patricia Casey. Professor Clare and Dr. Denihan were reporting to the CMO from the point of view of the plaintiff’s ability to work. Professor Casey was the expert retained by the defendants for the purpose of defending the case.
7.5 Dr. Daly stated that the plaintiff had had a previous post-traumatic stress disorder in July 1999, and that it was difficult to state to what degree he suffered a recurrence of this following the incident in November 2006, or “alternatively, to what degree his concerns for his safety and those of his family were more reality based”. Dr. Daly went on to say that based on the plaintiffs account, his concerns did not seem to have been clearly or properly responded to by his employers, and that if they believe his fears to have been exaggerated, it would have been “appropriate to inform him and to ensure that he received some form of care or counselling for a subjectively experienced fear state which extended to fears for his life, for the wellbeing of his family”. Dr. Denihan, when he examined the plaintiff on behalf of the CMO in April 2008, stated that the plaintiff was at that stage at a major risk of full-blown relapse of his PTSD and that while he initially received antidepressants and tranquilisers from his GP, this had been discontinued. Dr. Denihan also noted that the plaintiff was prone to self-medicating with alcohol at night, particularly when under stress, but that this was not a serious problem.
7.6 In August 2008, Dr. Daly indicated that the plaintiff’s perception of his employer’s indifference to him was relevant. The fact that he felt abandoned by his employers and that it was important that his concerns be properly addressed. He went on to say that it was important that the plaintiff be provided with “sufficient opportunity to describe his experiences and seek appropriate understanding and reassurances. The issue is not about whether his response is disproportionate or not. The fact is that he has so reacted and he will benefit clinically if his superiors can accept this as a matter of fact and express due concern for any stress suffered. All of this can be done without judging the substantive issues in the case …”
7.7 It should be pointed out that by this stage, the plaintiff had already been advised by Inspector Hanrahan that there was no threat to him, but that this advice was not accepted. In July 2008, the plaintiff had been further advised that the disciplinary investigation had exonerated him. Dr. Denihan and Dr. Daly were reporting to the CMO and subsequent to these reports in September 2008, the plaintiff together with a representative from the GRA met with Superintendent Curran with a view to easing the plaintiffs concerns. The first such meeting with Superintendent Curran was somewhat fractious, but as previously described, there were many meetings in which the defendants attempted to reassure the plaintiff that there were no threats to him and wanted to accommodate him by getting back to work.
7.8 It is submitted on behalf of the plaintiff that these meetings were too focused upon getting the plaintiff back to work and not focused enough upon the plaintiffs past concerns. The court does not accept that point of view. The court has already concluded that the plaintiff at this stage had a fixed view that the defendants were scapegoating him. Furthermore, after this series of meetings, as previously stated, Inspector Hanrahan took in charge the issue of the worrying telephone call to the plaintiffs mother and this was dealt with in February 2009.
7.9 In his report dated 8th March, 2009, which was, in all probability actually written on 8th April, 2009, Dr. Daly stated that the plaintiff was at that stage “clinically well with few symptoms of anxiety”.
7.10 Dr. Daly went on to state:
“Mr. Nyhan is currently fairly well and in normal circumstances, fit enough for work. Return to this job, in this context, however, is a different matter. Whether he would compensate clinically is another matter and one about which I would not feel able to confidently predict – so much would depend on how events unfolded and how relationships and supports were established and maintained. It seems clear to me, however, that Mr. Nyhan does not wish to attempt to return to his former employment, whatever the consequences this decision might entail for him. His wife broadly concurs and it is my opinion that these decisions are being taken reasonably and not in response to any psychiatric disorders or clinical anxiety. While this attitude may seem entrenched, especially to his management, this derives mainly from his perception of their handling of the situation rather than from his own anxieties.
There may be an element of fear on his part that his mental state will deteriorate and that his anxiety may reassert itself upon a return to work, but, if so, this is only one element of a larger complex and, in the ultimate analysis, not the deciding one since he has also refused to consider a return to work and transfer elsewhere.”
7.10 Garda Management, on the advice of the CMO and with the support of Dr. Denihan following this opinion from Dr. Daly concluded that the plaintiff was fit to return to work.
7.11 The plaintiff himself was interviewed by the CMO, and was informed by the CMO that he was medically fit for work. He was not happy with this and disputed the CMO’s belief that garda management were treating him fairly and could be trusted by him and that he was at no greater risk than other member of the force from any serious injury from a criminal.
7.12 At this stage, the CMO was also furnished with a report from Dr. Michael Corry, the plaintiffs other treating psychiatrist, which indicated in July 2009 that the plaintiff had developed a serious ‘Post Traumatic Disorder’. It seems that the CMO was dealing with Dr. Daly and proceeded on the basis that what Dr. Daly was reporting was correct as Dr. Daly was the plaintiff’s main treating psychiatrist.
7.13 In any event, the plaintiff did return to work on 2″d November, 2009. He reported on sick leave on 6th November, 2009, and has remained off work since then has been certified as unfit by his doctors.
7.14 After the plaintiff reported sick on 6th November, the CMO requested the plaintiffs GP to give details of any further illness the plaintiff has suffered since he had previously had been found fit for work by his doctors, but Dr. Bent does not seem to have responded to the CMO’s request in this regard.
7.15 As a result of receiving the opinion of Dr. Daly and as a result of the endorsement of this opinion by their own psychiatrist, Dr. Denihan, the defendants have persisted in the view that the plaintiff was and is fit for work.
7.16 Analysing the various medical reports, the court has come to the view that the plaintiff did indeed suffer from a depression and a probable reactivation of his previous PTSD symptoms and either the paranoia as posited by Professor Casey or the “suspicious thoughts and over valued ideas” as posited by Dr. McCormack.
7.17 The court is of the view that these symptoms eased so the plaintiff was as stated by Dr. Daly in April, 2009 fit for work. After his return to work, for whatever reason the plaintiff has suffered a relapse of those injuries. It is unfortunate that Dr. Bent did not respond to the query from the CMO as to whether the plaintiff was suffering from any new injury. It is noted that the plaintiff has in recent days been reassured, not just by some of the evidence given in the court proceedings, but also by a helpful meeting with his present superior. The plaintiff has expressed a desire to get back into the force. It is outside the scope of this case to comment upon whether this is possible or not, but certainly the court hopes that this can be achieved.
7.18 I accept that the plaintiff has suffered a reactive depressive-type injury from the various factors involved in the death of Ms. Saulite. After the misunderstanding of what Detective Superintendent O’Sullivan had said to Sergeant Hughes, the plaintiff’s initial, perhaps, understandable belief, was that he may have been scapegoated. This belief was part of his depression and has persisted.
7.19 I note the views of Professor Casey who states that in her first examination of the plaintiff in December 2010, he presented in a dishevelled manner, with noticeable beard growth. Professor Casey stated that the plaintiff admitted to drinking up to four bottles of wine per day or ten to twelve cans of beer. The plaintiff described his daily routine and that he spends most of the time at home, he takes the child to school, does not go out, goes to bed for a few hours mid-morning and collects his daughter in the afternoon.
7.20 This account of the plaintiff’s alcohol intake was essentially corroborated by an interview Professor Casey had with the plaintiff’s wife, though she stated the quantity at two bottles of wine per night plus vodka.
7.21 It is not unimportant that the quantity of four bottles of wine a night was the same quantity as mentioned by Mr. Dempsey, the psychologist, after the 1999 incident.
7.22 Professor Casey was of the view that the plaintiff did suffer an adverse result to the events following death of Ms. Saulite, as a result of this, he drank in excess and has developed “a mental health condition of such severity that it borders on the psychotic, and indeed may be a full-blow psychotic disorder known as Persistent Delusional Disorder. It resembles his response to a traumatic incident a number of years earlier which was diagnosed as Post Traumatic Stress Disorder. That condition resolved when he stopped drinking. In my opinion, Mr. Nyhan should cease drinking, and if necessary, receive professional help with this. In that way it will be possible to evaluate whether he suffered from underlying Post Traumatic Stress Disorder. In the presence of severe alcohol misuse and possibly a psychotic disorder, it is impossible to make a diagnosis of Post Traumatic Stress Disorder. Once he is alcohol- free, he should be re-evalued psychiatrically”.
7.23 The plaintiff and his wife both deny that the plaintiff drank up to four bottles of wine a night. The plaintiff did say and his wife confirmed that he did drink to excess before important meetings of which indeed there were many. The plaintiff denied drinking beer from cans but agreed that he drank wine but not to the extent as stated by Professor Casey.
7.24 The plaintiff’s GP, Dr. Bent, stated, and I accept that the plaintiff is not suffering from an alcoholic dependency problem. The plaintiff did not present to me in such a condition and I observed him carefully throughout the proceedings, including the significant number of days that he spent in the witness box. I accept that the plaintiff and his wife did confirm consumption of up to four bottles of wine on some days, but I do not believe that they meant that this excessive consumption was every day or anything like it. I accept the plaintiffs own doctor’s evidence that he did not and does not display the traits of someone who is dependent upon alcohol.
7.25 I accept that if someone suffers depression or symptoms of PTSD he may increase his alcohol consumption to an excessive quantity. I do not believe that it is the core of the plaintiff’s problem.
7.26 The plaintiff complains that the defendants, as part of their bullying or neglect or breach of duty towards him, failed to properly address his medical concerns. It is clear that the CMO advised the senior management of An Garda Síochána that the plaintiff should be interviewed and his fears allayed by senior garda management, this advice was not followed. However, the defendants did provide significantly senior members up to the rank of Chief Superintendent to meet and speak with the plaintiff and attempted to persuade him that his fears were groundless. I am not convinced that a meeting or meetings with anybody of the rank of Assistant Commissioner or Commissioner would have achieved any better results.
7.27 I am particularly of this view in that the plaintiff’s core belief is that the Commissioner, and indeed, his immediate agents, were those responsible for the bullying and harassment that are the subject of these proceedings. I believe that the defendants were reasonable in the circumstances in their dealings with the plaintiff.
7.28 The court also heard evidence from Professor Mona O’Moore of the Anti Bullying and Research Centre from TCD.
7.29 Professor O’Moore listed the plaintiff’s complaints including the plaintiffs analysis of the “negative behaviours towards him”. Having listed the plaintiffs concerns, she concluded, “The above behaviours which extended over a [considerable] period of time can be defined as bullying”.
7.30 Professor O’Moore then utilised a number of psychological tests “to confirm the behaviours reported by Mr. Nyhan”. It is the view of the court that these tests and Professor O’Moore’s conclusions merely establish that the plaintiff believed that he was being bullied and that he was experiencing intense levels of anxiety, etc. Professor O’Moore concluded that the psychological behavioural problems that he suffers from are “consistent with those well-documented in the literature on bullying and harassment at work … as resulting from workplace bullying”. In her evidence to the court, it transpired that Professor O’Moore’s view was, in effect, that if an employee had any concerns about his or her workplace, and if those concerns were not addressed by the management to the satisfaction of the worker, that that, in itself, would amount to bullying.
7.31 That is a conclusion that the court cannot accept. The fact of bullying is an objective one. Clearly, what may not be bullying to a robust employee may be bullying to somebody who is vulnerable. The failure of the defendants to give the plaintiff what he concluded to be a satisfactory resolution of his complaints is not and cannot of itself always amount to bullying. The test is as stated by the Supreme Court in B.R. v. Dunnes Stores Ltd. [2009] 20 ELR at pp. 75 to 76:
“(i) The test is objective;
(ii) The test requires that the conduct of both employer and employee be considered:
(iii) the conduct of the parties as a whole and the cumulative effect must be looked at;
(iv) the conduct of the employer complained of must be unreasonable and without proper cause and its effects on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
7.32 The other issue in this case is the fact that the plaintiff has not been paid any salary for a considerable period of time. The defendants indicate that this is because the plaintiff has been judged as fit for work by his doctor, Dr. Daly, and that this opinion has been accepted by Dr. Denihan and, accordingly, the plaintiff is not absent as a result of any unfitness for work. Further, when the CMO asked Dr. Bent whether the plaintiff was suffering from any new illness after he was certified sick in November 2009, Dr. Bent did not reply to the CMO.
7.33 The plaintiff objects that the defendants have failed to comply with their own obligations under Chapter 11 of the Garda Code dealing with sick leave and under the defendants’ Management of Sickness Absence Directive (1st December, 2010). The latter relates to whether an injury is to be considered injury on duty.
7.34 It is agreed by the parties that it is not within the scope of this case to analyse whether or not the defendants owe the plaintiff his wages since the time that they were stopped. Were the court to so decide, on the evidence before me, I would be likely to hold that as the plaintiff went off sick in November 2009 after his return to work for a few days, that he has suffered a relapse and that his absence from work results from an injury or disability relating to his work.
7.35 It may be that in the threatened action in relation to his loss of earnings that different evidence will be available and that court would decide the issue differently. It is to be hoped that no such action is necessary and that the matter can be satisfactorily resolved between the parties.
7.36 For the purposes of this action, however, the court is not of the view that a failure to make assessments required under the defendants’ own procedures represented an actionable breach of duty or an example of bullying of the plaintiff.
7.37 The defendants, not unreasonably, and on the evidence open to them at the time concluded that the plaintiff was, in fact, fit for work and had chosen not to return to work because of his disagreements with the Defendants. Accordingly, the defendants concluded, again not unreasonably, that the plaintiff was not entitled to his earnings as a guard having been given the appropriate warning.
8. Conclusion
8.1 The plaintiff is a vulnerable individual who suffered great stress in an incident in 1999. In 2006, having carried out excellent police work on behalf of Ms. Saulite, he was then understandably shocked and indeed horrified by her murder. When the plaintiff discovered that he, together with Sergeant Hughes, had been given a draft victim impact statement in which Ms. Saulite had expressed fears in relation to H.H., the plaintiff was again naturally shocked. When the plaintiff believed, through a misunderstanding from Superintendent O’Sullivan, that the gardai were in possession of direct threats against Ms. Saulite’s life from H.H., which they chose to ignore, and that he and Sergeant Hughes were apparently the only focus of disciplinary investigation, the plaintiff feared being scapegoated.
8.2 The plaintiff then also feared for his life and the life of his family from H.H. He was given garda protection and then this was withdrawn. He sought reassurances from the Commissioner initially as to the level of threat against him. Reassurances were given time and time again. The plaintiff did not accept these reassurances. The plaintiff went on to fear persecution from the first defendant as much, if not more so, than any physical threats from H.H.
8.3 This idea of persecution became fixed in his mind and nothing that was said could shake him from this conviction.
8.4 I believe at some stage the plaintiff’s depression and anxiety and panic symptom eased but unfortunately they have returned.
8.5 As stated previously, I do not believe that the complaints the plaintiff makes amount to bullying or harassment or breach of duty or negligence by the defendants. I believe that it is clear that there was no scapegoating of the plaintiff or Sergeant Hughes because the garda authorities were never attempting to cover up senior management as there was nothing to cover up.
8.6 While some of the plaintiff’s grievances might have been dealt with differently, and while the initial investigation into Ms. Saulite’s death might with hindsight have been better co-ordinated, none of these factors give the plaintiff an actionable case against the defendants.
8.7 The issue of contributory negligence does not arise as I do not believe that there is any liability of the defendants to the plaintiff, but were I to decide that issue, I do not believe that it any way the plaintiff should be faulted due to the level of his engagement with the defendants. The plaintiff was I believe at all times and still is sincere in his convictions, misplaced though they may be. He fully engaged with the defendants as much as the defendants fully engaged with the plaintiff.
8.8 It is not the function of this Court to decide the issue of the plaintiffs stopped pay and the court has already made comments in this regard.
8.9 My judgment in this case is influenced by the stated ongoing goodwill to the plaintiff from the defendant.
8.10 It is not within the function of this judgment to decide on the future of the plaintiff in An Garda Síochána. It is to be hoped that the plaintiff does have such a future as he now himself also hopes and has been stated to him by his new superior officer.
8.11 For the reasons outlined above, the plaintiff must fail in this case and I dismiss same.
O’Toole -v- County Offaly VEC
[2011] IEHC 141 (15 April 2011)
JUDGMENT of O’Neill delivered on the 15th day of April, 2011
1. The plaintiff in these proceedings is a Secondary School teacher, employed by the defendants, since 1984, initially, in Edenderry Vocational School and then in Tullamore College, and since 2001, in Ferbane Vocational School. The plaintiff was born in 1962, and is married with one child. Her husband is also a teacher employed by the defendants.
2. The plaintiff sues the defendants in these proceedings for damages for injury to her mental and physical health, which, she alleges, has been caused by the defendants, its servants or agents, in the intentional or reckless infliction of emotional suffering on the plaintiff by harassment, sexual harassment, intimidation and abuse by the defendants, its servants or agents. The plaintiff’s case against the defendants centres around her allegations of sexual harassment of her by another teacher, Mr. Jim Mooney, the defendants, servant or agent. She claims that the defendants failed to provide her with a safe place or system of work, free of sexual harassment, abuse and bullying. She further alleges that the defendants were in breach of s. 1 and s. 23 of the Employment Equality Act 1993, and its own code of practices on sexual harassment, or in dealing with discrimination or, in particular, sexual discrimination, harassment and bullying in the workplace, and that the defendants failed to properly, or at all , investigate the plaintiff’s complaints of sexual harassment and bullying by Mr. Mooney. The plaintiff also makes the case that the defendants improperly or unjustly caused or allowed or permitted the plaintiff to be implicated as a perpetrator of an arson attack on Tullamore College, in or about June 2001. The plaintiff also alleges that the defendants failed to adhere to custom and practice in Tullamore College, whereby when a teacher took on a position of ‘Acting Year Head, a grade promotion would follow, as a consequence of which, the plaintiff claims she was denied a promotion to which she was entitled.
3. The plaintiff’s complaint of sexual harassment against Mr. Mooney commenced at a Christmas party in Kinnitty Castle, for the staff of Tullamore College. She says that when she went to the bar to purchase drinks, Mr. Mooney looked into her eyes, putting on a pout on his face, as if he was coming on to her. Much of her complaints of sexual harassment concern the term from January 1997 to Easter of that year. During that time, the plaintiff, as part of her duties, was obliged to distribute the register or roll to various teachers. This brought her into contact with Mr. Mooney during that period. On one occasion, she said he, “Slithered down the wall, he opened his legs, and he put on this really sexually suggestive face, like, I am, you know, I am interested, if you are”. She described this incident as making her feel like a piece of meat instead of a human being, and that she was very upset by it.
4. She said on a few occasions, as she was walking home for lunch, Mr. Mooney, as he was going by in his car, would let the window down and he would say, “Mary, would you like a ride” and he would grin as he was saying this. To avoid these situations, the plaintiff says she would wait at the back door until she saw his car leave before walking home.
5. The plaintiff said that in the Common Room, on a number of occasions, at this time, when she would go to the sink to make a cup of tea for herself, Mr. Mooney would come over and he would put his hand on her back and leave it there for a few minutes, and rub her back. She would look at him and he would say, “Sorry, Mary, I’m just getting a knife”. The plaintiff regarded this touching of her by Mr. Mooney as inappropriate.
6. On the last day of this term, coming up to the Easter holidays, there occurred an incident which greatly disturbed the plaintiff and which she concluded was contrived by Mr. Mooney to, in effect, force contact on her and humiliate her. When she went to collect her paycheck, it was not in her pigeonhole. Her pigeonhole was immediately beside Mr. Mooney’s pigeonhole. She went to Mr. McEvoy, the School Principal, who confirmed that she had been paid and advised her to go back and check again. She did this, but there was no paycheck in her pigeonhole, and because of the way Mr. Mooney had been behaving toward her, she thought that it was possible that he might have interfered with her paycheck as a way of bullying her or making her feel small. She went down to Mr. Mooney’s classroom, went in and said, “Excuse me, Mr. Mooney, did you take my paycheck by mistake?” She approached the matter in this way because she did not want to accuse him. She described Mr. Mooney as acting in a very cool, casual manner towards her. She described her paycheck, because she was still paid by cheque and not by an automated paypath system, as different in appearance to that of Mr. Mooney’s. In any event, Mr. Mooney started fumbling in his pocket and he brought out the plaintiff’s paycheck and envelope, which was torn at the top and rolled up. The plaintiff could clearly see her name written on the top of it. She regarded his behaviour at the time as unbelievable and cheeky and she said to him, “We need to talk”. She asked him to come outside the door and said to him, “Now listen to me . . . you took my paycheck”. She then said, “You’ve been putting your hands on me in the Staff Room and I want it to stop”. She said, “I am a married woman”. He responded by saying, “Listen, I won’t talk to you here, I’ll meet you after school. Will you meet me after school?” To which the plaintiff responded, “I have no intention of meeting you anyplace”. The plaintiff said that at that stage, he started to grin, and said, “Cool it, cool it, nothing happened” and with that, he walked back into the room and the plaintiff walked away. The plaintiff firmly believes that the taking of the paycheck by Mr. Mooney was not an honest mistake because of the obvious difference between the envelopes in which the respective paychecks came. The plaintiff was very bothered and upset by this incident and wanted to sort things out with Mr. Mooney. She wanted to tell him, “Look, Jim, you know, stop this. You are disrespecting me. I don’t like it. It’s making me feel bad. I am not sleeping at night; I am, you know, I’m starting to have to go on anti-anxiety medication”. The plaintiff felt that if she could have had two minutes of conversation with Mr. Mooney, that she would feel a lot better and they could draw a line under it.
7. This led into the Easter holidays of 1997. After Easter, the plaintiff was still ‘Assistant Year Head’, which meant she was allowed to distribute the Registers or Rolls, which meant some contact between herself and Mr. Mooney. Although she had told him in the discussion after the paycheck incident not to put his hands on her again, on one occasion, as she was coming out of Room 6, he was coming against her, and he put his two hands on her shoulders and moved her out of his way. He did not say, “Excuse me, Mary” or anything like that. He simple moved her out of his way, in a way which she felt was disrespectful.
8. At around this time of April or May 1997, the plaintiff attended her General Practitioner, Dr. Keane, whom she said put her on anti-anxiety medication. The plaintiff felt that before the summer holidays came, she needed to sort matters out with Mr. Mooney, so that when they came back in September 1997, they could resume normal relations as colleagues.
9. On about 29th or 30th May, 1997, on a Sunday evening, coming up to the end of term, the plaintiff had an arrangement to meet a friend of hers for a drink that evening. Before going to meet her friend, the plaintiff decided to call to Mr. Mooney’s house, which was close to the plaintiff’s house, about five minutes walking distance away. She called at the door and it was answered by a man who informed the plaintiff that Mr. Mooney was out and that she could find him in any one of a number of pubs downtown. This was about 6.00pm in the evening.
10. The plaintiff left and met her friend and had a few drinks with this friend and drove home. The plaintiff described herself as feeling, on the occasion, a little bit “squiffy”. She decided, on the way home, to call again to Mr. Mooney’s house. She parked her car at the gates of the house. She knocked on the door. The man who had been there earlier answered and informed her that Mr. Mooney was out the back playing pool, and he brought her through the house, and she encountered Mr. Mooney as he was coming out of the poolroom, which was a converted garage. The plaintiff said to Mr. Mooney, “Jim, I need to talk to you, I need to sort things out with you”. He responded by pulling her around to the side of the house, and he said to her, “Not in front of the lads”. The plaintiff says that when he pulled her around to the side of the house, he put his arms around her, and started to try to kiss her and hug her and caress her. The plaintiff said, no, and she pulled him around to the front of the house. At that stage, he said, “Not in front of the lads” and he bundled her into his car and drove her home. During the course of this short journey, there was no conversation at all. When the plaintiff got home, she realised that she did not have her car keys, that her husband needed the car the next day, so she walked back down to Mr. Mooney’s house. She could not find the keys. She went to the door of the house and knocked, and a man opened an upstairs window and said, “Jim Mooney is gone to bed, and if you don’t go home, I’m going to call the guards”. The plaintiff replied, saying, “Look, I can’t find my keys, could somebody just give a flashlamp”. The plaintiff says that at that stage, this other man was downstairs and he was on the telephone and he was calling the guards. The plaintiff walked back to the car and, as she did, she saw the keys on the ground in front of the car, so she drove the car back home.
11. The plaintiff slept poorly that night, she was terribly upset, embarrassed and humiliated. In particular, she was wondering what Mr. Mooney must have said to the other man that caused him to call the guards. She was also upset by the fact that when she went to try to sort things out with Mr. Mooney, all he wanted to do was put his arms around her. She also realised that she would have to tell all this to her husband in the morning, and she was further upset by this. She felt worse the next day, and she was very distressed, upset and feeling humiliated and embarrassed.
12. The plaintiff went into school the next day, a Monday, to supervise examinations. While she was doing this, she composed a letter to Mr. Mooney, which was the subject of much controversy in this case. This letter reads as follows:
“Jim,
I need to talk to you. I know you’re cool, and you don’t need to talk to me. I promise not to get intense – I promise, promise, promise. I’m sorry about last night, it was stupid, but when I have a few drinks, I’m crazy, but, heck, if the world was full of sane people, it would be a very boring place. I don’t want anything from you except a few moments of your time.
We’ll be on this staff together for a long time, and I’d like to sort this out with you before the summer hols.
Before the Easter hols, I tried to sort it out and I told you how I felt, because I thought suffering a few moments of humiliation would do the trick and all would be okay after that.
Jim, I am a typical woman, making a mountain out of a molehill, but that’s me – for the sake of good staff relations (not that I give a toss about them), can we talk, sorry, can I talk, just explain, and I guarantee you, I’ll disappear from the face of the earth after that – I’ll never raise my eyes in your direction again, except to say hello, Mr. Mooney – I think you are a nice guy – you remind me of my brother, he’s exactly like you, and out of all of them, he’s the one I get on best with. I like you. I don’t care what you’re like, who you are, where you come from, even if you are an extraterrestrial. It doesn’t matter to me even if you don’t like me. I can cope with that – hell, I’m a big girl – just please can we talk some place where there’s no one else around. I want to tell you why I’ve been behaving so crazily lately – then my conscience will be clear, and even if you never speak to me again, well, I can cope with that too – just please give me one opportunity to explain.
If you look at me coldly after this and say there’s no need to – I’ll die. Then you’ll have to go to my funeral and that’s more hassle.
Give me a lift home this evening at 3.30pm and I’d get the opportunity to explain – if you’re in the Staff Room, I’ll ask you for a lift, and I could have the few moments I want then. Please, please, please, Jim.
Then, no more hassle ever after that.
Please get rid of this, as, if it was found, the teacher from hell would be transferred to Siberia.”
13. This letter was handed by the plaintiff to Mr. Mooney during that morning. Mr. Mooney made no response whatsoever, either then or later, to this letter. He did, however, retain a copy of the letter, which he subsequently disclosed to the defendants, as will be mentioned later.
14. The plaintiff explained the content of this letter as being an attempt by her to be conciliatory towards Mr. Mooney, in the hope that that approach would induce him to afford her the time and opportunity to speak to him about his conduct which was causing her so much upset.
15. In the event, this did not happen. Mr. Mooney did not reply at all to the letter and did not give the plaintiff the opportunity she so anxiously desired to speak to him.
16. The summer months of 1997 went by, and during that time, the plaintiff experienced some respite from her troubles.
17. During the summer months, the plaintiff purchased a car. She had discussed Mr. Mooney’s behaviour with her husband and they both agreed that she should have a second car to avoid giving Mr. Mooney the opportunity to offer her a lift, in the manner she had described and which caused her so much upset.
18. On return to school in September 1997, the plaintiff discovered that Mr. Mooney had been given the post of ‘Transition Year Coordinator’. The plaintiff was one of the teachers who taught this class. This necessitated attending meetings in the Transition Year room. The plaintiff had a particular complaint, to the effect that Mr. Mooney, who called the roll for the transition year students at 9.00am, would delay in doing this so that the plaintiff, who was due to take that class immediately afterwards, would be kept waiting 20 or 25 minutes outside the door. When he would emerge, Mr. Mooney would walk out with his head in the air and there would be no, “I’m sorry for holding you up”. She felt that this was another bullying tactic by Mr. Mooney. Sometimes, instead of merely keeping his head in the air and ignoring her, he would give her a leering look. This leering look conveyed to the plaintiff that Mr. Mooney simply regarded her as a sexual object, and she felt very disrespected by it. The plaintiff continued to be very upset and on anti-anxiety medication.
19. The plaintiff also complained that in the course of meetings concerning transitional year students, Mr. Mooney was openly dismissive of the plaintiff’s contributions and suggestions. On one occasion, in response to the plaintiff’s suggestion that the students be taken on a trip, Mr. Mooney replied, “I don’t care where the fuck you take them”. Mr. Mooney responded to other suggestions from the plaintiff by throwing his eyes to heaven and dismissing whatever was suggested. All of this happened in front of other teachers and the plaintiff experienced it as very hurtful and felt very belittled by it.
20. In December 1997, the Principal, Mr. McEvoy, came into the class to find the plaintiff in tears. He called her aside and brought her to his office. In response to Mr. McEvoy’s queries, the plaintiff said she told him that somebody on the staff was bullying her and treating her badly. He enquired had she tried to sort it out, to which she replied she had tried everything, and then he suggested that she should go for a drink with the person and sort it out. Having obliquely guessed the identity of the person, he again suggested that she should try and sort it out with him. Mr. McEvoy did not indicate to her that there were grievance procedures that could be followed.
21. Coming up to Christmas 1997, the Social Committee in the school organised a meal in Kinnitty Castle again. Many of the teachers travelled there by bus. When the meal was over, a number of the teachers suggested going back to the plaintiff’s house, to which she agreed. Mr. Mooney was on the bus but she did not invite him, and during the course of the party in the plaintiff’s house, which the plaintiff said was going very well, somebody let Mr. Mooney in. In the course of banter involving Mr. Mooney and, it would seem, the plaintiff, the plaintiff says that Mr. Mooney said to her, “you know something, all women are stupid” and the plaintiff replied, “why do you say that all women are stupid?” The plaintiff made this enquiry because she was thinking that perhaps this was the reason why he was tormenting her, that he had this attitude towards women. The plaintiff’s evidence was that Mr. Mooney replied to a query saying, “You are stupid, and your fucking mother is stupid, too”. The plaintiff was very upset by this exchange, and at that stage, another teacher intervened and removed Mr. Mooney. The plaintiff noted that Mr. Mooney had been drinking brandy during this party, and that the alcohol probably accounted for his abusiveness. The plaintiff, on the way out to the kitchen, learned that Mr. Mooney had been abusive to another male teacher that night.
22. The plaintiff was continuing on medication during this time and found it of considerable help. The plaintiff had been experiencing problems with her stomach and these became exacerbated. In January 1998, her GP referred her to a Consultant Gastroenterologist who had tests carried out and diagnosed a hiatus hernia. In February and March 1998, the plaintiff attended a counsellor or therapist, a Mrs. McManus. The plaintiff was put on treatment for her hiatus hernia. She was also on antidepressants, namely, Prozac.
23. From January to Easter 1998, the plaintiff kept out of Mr. Mooney’s way. She had not, up to this time, made any complaint to the relevant authorities concerning Mr. Mooney, but she did report all of these things to her counsellor, Mrs. McManus. During this period, there was no incident involving Mr. Mooney, but she perceived him as sneering and sniggering if they passed in the corridor. She understood this sneering or sniggering to mean that Mr. Mooney regarded himself as having got away with his misconduct.
24. Nothing further happened between the plaintiff and Mr. Mooney until the end of the summer term at the end of May 1998. To mark the end of term, the school organised a lunch in the school provided by caterers. This ended at about 3.00pm. After this, a number of teachers, including the plaintiff and Mr. Mooney and a number of others went down to Pat’s Bar for a drink. Later in the evening, a suggestion arose from a teacher to go back to Mr. Mooney’s house. During the course of the day, Mr. Mooney had not been unpleasant towards the plaintiff. She decided to go back to his house and thought she might get an opportunity to have a discussion with him and to sort things out once and for all. Late in the evening, as the party was dispersing. Mr. Mooney put one of the teachers to bed upstairs. The plaintiff, at this stage, had her coat on, ready to depart, but Mr. Mooney asked her to stay. She agreed. Mr. Mooney was some time attending to the other teacher, and in the meantime, the plaintiff sat on the floor in the living room, reading a magazine. Eventually, when Mr. Mooney came down, he sat in an armchair, obviously close to where the plaintiff was sitting. Mr. Mooney opened the conversation saying, “What do you want to talk to me about?” To which the plaintiff replied, “Jim, why can’t we just be friends . . . not friends . . . who have long, deep conversations, but colleagues who can pass each other in the corridor”. Mr. Mooney replied, saying, “Mary, there’s no point in being friends if we can’t have sex . . . what about sex?” The plaintiff said, “I can’t have sex with you”. The plaintiff’s evidence was that at that stage, Mr. Mooney lay back in the chair, opened his trousers and exposed his penis, and putting his hand on her head, and with his knees, nudged her towards his crotch area. He then lay back in the chair and said, “Yes, yes, yes”. The plaintiff got up and ran out and was followed by Mr. Mooney who said he would walk her home and she said, no, that she would run home.
25. The plaintiff described herself as extremely hurt and upset by this incident, that she informed her husband and Michelle Brooks and Tom Bracken of it, but did not do anything about it as she considered that Mr. Mooney was very drunk and she excused him on that account.
26. Over the summer holiday months, there was no contact whatever between the plaintiff and Mr. Mooney. During the summer months, the plaintiff got the good news that she was being asked to be Acting Year Head for the First Year students. Her evidence was that she was to be provided with an office for that purpose and was shown a room by Helen Wilson, the Vice Principal, and invited to choose colours for paint and carpets.
27. The plaintiff’s next encounter with Mr. Mooney occurred at a social event organised by the Social Committee in the school in Spollen’s Public House. There were about six or seven teachers present, including the plaintiff, Mr. Mooney and others. In the course of banter concerning popular psychology and personality types, in which the plaintiff appears to have described Mr. Mooney as “phlegmatic”, Mr. Mooney reacted by saying to the plaintiff, “yeah, and you are rude”. To which the plaintiff replied, “Jim, why are you turning this into something nasty? Like, why are you saying I am rude?” Mr. Mooney replied, “You are rude” which he shouted at her. This greatly upset the plaintiff, who started to cry. She got up and went to the bathroom where she was consoled by Michelle Brooks. The plaintiff recovered and rejoined the gathering. Mr. Mooney left after a while.
28. The plaintiff was very upset by this encounter, she described herself as being in a very fragile condition at that time, that she was still on stomach medication and she felt that the whole thing was starting off again, that it was going to be another year of that kind of behaviour. When she went home, she was inconsolable. She told her husband what had happened. At this stage, the plaintiff felt she was walking around with a nervous breakdown. At this stage, the plaintiff did that which she described as something that was very irrational, that she just wanted to get Mr. Mooney back, that she wanted him to stop. She wanted to hurt him because he had hurt her for so long, and all she wanted to do was to hurt him back. On the evening of 12th October, 1998, about a week after the incident in Spollen’s Bar, the plaintiff called to the home of Rosarie Mannion, a lady whom the plaintiff had shortly before then befriended, and asked to go for a drive. They left in Ms. Mannion’s car and en route, the plaintiff requested Ms. Mannion to drive to Tullamore College. When they got there, or adjacent to it, the plaintiff got out and returned a few minutes later. The plaintiff had brought with her a meat skewer and she had noticed Mr. Mooney’s car parked in the car park and punctured a tyre with the meat skewer, and as she was passing the car, leaving, she broke off the aerial. The plaintiff returned to Ms. Mannion’s car and they drove off and returned to Ms. Mannion’s house. Mr. Mooney was playing indoor soccer in the gym in the college at this time. The plaintiff described herself as having experienced a sense of relief, because it was “like, you know, you can’t go on hurting a person indefinitely, getting away with it, smirking and sneering at them and just having to take it”.
29. Another social event for teachers in the school took place after the midterm break in Lynch’s Pub. The plaintiff attended this, as did Mr. Mooney. Because the plaintiff was not drinking, she was asked to be the designated driver, which she agreed to do. After the event in the pub, the group repaired to Mr. Mooney’s house and the plaintiff also went there because she was the driver for a number of people. During the course of the evening, she had no contact with Mr. Mooney. Towards the end of the night, a taxi arrived to take a number of people home. At this stage, the plaintiff had her coat on. She went upstairs to go to the bathroom, and when she came downstairs, Mr. Mooney pulled her into the sitting room, which was located adjacent to the stairs, and pushed her against the wall. The plaintiff said to him, “Jim, this is not about sex”. Mr. Mooney replied, “If it’s not, then you can go home . . .” The plaintiff then left. The plaintiff described herself as delighted she finally had a chance to tell Mr. Mooney that she had no intention of having sex with him.
30. Early in November 1998, there occurred a number of meetings between the plaintiff, the school Principal, Mr. McEvoy and the Chief Executive Officer of the defendants, Mr. Diarmuid O’Neill. The first of these meetings took place on Monday 2nd November, 1998, at 9.20am. A note of this meeting prepared by Mr. O’Neill reads as follows:
“MEMO
MEETING WITH MARY O’TOOLE
MONDAY 2ND NOVEMBER, 1998, 9.20AM
Present:
Diarmuid O’Neill
Mary O’Toole
Edward McEvoy came in at late stage.
• Incident outside gym (a number of weeks back)
• Car damaged deliberately – the car belonged to Jim Mooney
• Criminal damage, criminal offence.
• Gardaí investigated the matter and have made significant progress in the matter.
The incident happened between 7.00pm and 8.00pm on Monday night during an indoor football session that I took part in.
I was informed by the school caretaker that the damage had been carried out.
I saw the damage as I came out after the class at 8.00pm.
Two ladies who were parked, in the car park, and were still sitting in their car, saw the whole thing.
• Saw the car coming in
• Saw the person coming out of the car
• Saw the car turn
• Saw the person who damaged the car
• Saw the person get back into the car
• Saw the driver of the car
• Saw them leave
• Took the make, colour and Registration Number of the car.
The gardaí have made significant progress, and at this stage, they can make an arrest. An arrest and charge of criminal damage.
Gardaí:
They have the name of the person.
Mary O’Toole expressed total surprise at the information given and condemned the action as outrageous. She said that she had serious problems with Jim Mooney, cheque, and other issues. Diarmuid O’Neill requested her to report to him before 4.00pm today if she wished to discuss the matter further.
Diarmuid O’Neill
2nd November, 1998.”
31. The plaintiff’s account of this meeting is that at the outset of it, she was asked if she knew anything about damage to Jim Mooney’s car; that the guards had been in contact with Mr. O’Neill and/or Mr. McEvoy. Her response was, “No, but I can tell you about what Jim Mooney has been doing to me and his campaign of harassment and sexual harassment of me”. The plaintiff says that Mr. O’Neill indicated that she could not make allegations of that nature about a person, in their absence, but that she could tell them about her qualities and strengths. She then said to them, “why can’t you bring him here now and we’ll get to the bottom of this”. To which the plaintiff says Mr. O’Neill replied, “It’s not necessary”. She says that they then changed the subject to an outing in which she was taking a group of students to the Dáil on 4th November, 1998, and, thereafter, the meeting ended. The plaintiff denied that she had said that the incident was outrageous, that she never used that word. The plaintiff said she told him that Mr. Mooney had been sexually harassing her, bullying her, tormenting her, and requesting sexual favours. She did not mention the incident where she says Mr. Mooney exposed his penis to her. The plaintiff denied that she was asked to report back at 4.00pm to discuss any further matters with them. The plaintiff said that she told them that Mr. Mooney had been leering at her; that he had been putting his hands on her in the Staff Room; that he had taken her cheque; that he had requested to meet her after school and that he had been sexually harassing her and bullying her over a period of time.
32. On 5th November, 1998, the plaintiff told Mr. Tom Bracken, her Union representative, that Mr. Mooney had tried to get her to engage in oral sex with him, and as a result of this disclosure, she met with Mr. McEvoy on that day, in the company of Mr. Bracken, and made this disclosure to Mr. McEvoy. Mr. Bracken has since died. On this occasion, the plaintiff says she also told Mr. McEvoy that Mr. Mooney had been sexually harassing her and requesting sexual favours.
33. On 6th November, 1998, the plaintiff says she told Helen Wilson, the Vice Principal, about Jim Mooney and his sexual behaviour towards her and exposing himself to her. She admitted to Helen Wilson that she had damaged Mr. Mooney’s car and explained that she did it because he had been sexually harassing her. The plaintiff’s evidence was that Mrs. Wilson’s response was to the effect, “Mary, he fancies you, are you not flattered . . . I don’t understand why you are upset . . .” The plaintiff replied that she was upset, “because I saw parts of his body that I shouldn’t have seen”. To which Mrs. Wilson replied, “Mary, men say that kind of thing to women all the time”. The plaintiff felt that Mrs. Wilson was not sympathetic to her and was urging her to harden herself up, and was dismissive of her complaints.
34. On the evening of 6th November, 1998, the plaintiff went to the gardaí and made a statement admitting damaging Mr. Mooney’s car. The plaintiff arranged to pay the cost of the repair to the car, and this was done in due course. The plaintiff was not prosecuted in respect of the damage done to Mr. Mooney’s car.
35. On 9th November, 1998, the plaintiff’s evidence was that Mr. McEvoy came to her classroom at about 9.15am and told her that Mr. O’Neill wanted to see her in the VEC office in about half an hour. The plaintiff went to the VEC office, and there met Mr. McEvoy and Mr. O’Neill. A handwritten note of this meeting was prepared and signed by the plaintiff, Mr. McEvoy and Mr. O’Neill, and it reads as follows:
“MEETING IN D. O’NEILL’S OFFICE, VEC OFFICES
MONDAY 9TH NOV. ’98 – COUNTY OFFALY VEC OFFICES
Present:
Mr. D. O’Neill, CEO
Mr. E. McEvoy, Principal
Ms. Mary O’Toole
Mary has informed gardaí on Friday that she did, in fact, damage J. Mooney’s car in the car park of Tullamore College.
Mary did say that she was aware that what she did was wrong.
Mr. O’Neill said that he could foresee difficulties if both members of staff continued working together in T.C.
Mary, in reply, said that she could go to another school.
Mr. McEvoy asked Mary if she was requesting a transfer. Mary’s reply was, ‘yes, I am, that would be wonderful’.
Mr. O’Neill requested Mary to write a letter of apology to County Offaly VEC for the incident and to include a guarantee that nothing like this would happen again.
Mary stated that it was her intention to pay for the costs of the repairs to J. Mooney’s car.
I informed Mary that letter would remain on file and would not be available to any committee or group unless there was a repetition of the incident.
Mary referred to a series of incidents which she asserts provoked her to act in the way she (did). The CEO said that as these were outside the area of responsibility of the County Offaly VEC, that we are adamant that we confine our discussion to the incident of criminal damage.
Mary was assured that she would have access to her file at all times. . .”
36. The plaintiff, in her evidence, said that she attempted to raise Mr. Mooney’s behaviour towards her at this meeting. This was dismissed by Mr. O’Neill, saying:
“Look, it’s of no consequence, it’s outside the area of responsibility of County Offaly VEC. It doesn’t matter what he did to you. We are here to discuss the car damage.”
The plaintiff denied ever saying that a transfer would be wonderful, but said that at that time, she would not have minded a transfer to get away from Mr. Mooney and out of the school. The plaintiff said she was told she had to do three things; to write a letter of apology to the VEC; to write a letter of apology to Mr. Mooney, and to write a letter of apology requesting a transfer out of the school. She said she agreed to write a letter of apology to the VEC, but point blank refused to write a letter of apology to Mr. Mooney. She said at that stage, she was sent outside the door. When she returned, she says the demand for the apology to Mr. Mooney was dropped. She says that at the start of the meeting, she attempted to explain why she had damaged Mr. Mooney’ car, but her attempts to outline her grievances with regard to Mr. Mooney were dismissed, that there was no willingness to investigate her complaints, and she had the impression of hostility towards her, that the attitude of Mr. McEvoy and Mr. O’Neill was, “we are going to get rid of you. We are going to side with Jim Mooney and you are of no importance and no consequence.”
37. The plaintiff said she was frightened, that she was told her job was on the line and that she could lose it, and she did not know at that stage that she could have had her husband or a union representative or anybody accompanying her at the meeting. She said she believed that Mr. McEvoy was the one who wrote the minutes of the meeting and subsequently erased the word “serious”. She said that she had put in the word “did” as she noticed, being an English teacher, that it had been left out. She said that they made it obvious that they had no interest in her complaint. She said she had never been informed that the meeting was of a disciplinary nature. She said was very upset during the meeting and she said that there was no fair procedures used at all.
38. Subsequent to this meeting, the plaintiff wrote two letters, both dated 17th November, 1998, and addressed to Mr. D’ O’Neill. The first of these letters was in the following terms:
“Dear Mr. O’Neill,
Further to our meeting of Monday 9th November, 1998, I wish to apply for a transfer from Tullamore College.
Thank you for your attention in this matter.
Yours sincerely,
Mary O’Toole (Mrs.)”
39. The second letter was as follows:
“Dear Mr. O’Neill,
I am writing as requested regarding the matter we discussed on Monday 9th November, 1998. I regret this incident occurring and it won’t occur again. In my view, a person hasn’t got anything if they haven’t their dignity. I felt mine had been trampled all over and I couldn’t take it any more. I lashed out in the wrong way. I have the height of respect for the VEC and I’m sorry that I caused you any trouble. I’m looking forward to the transfer.
Thank you for your attention.
Yours sincerely,
Mary O’Toole (Mrs.)”
40. The plaintiff explained the reference in the above letter as being to the effect that Jim Mooney had taken every bit of her dignity from her, and further, that she had been trampled on by Edward McEvoy and Diarmuid O’Neill who did nothing to investigate her complaints.
41. In the month following these letters, the plaintiff consulted with her union representative, a Mr. Brian Hyland, and as a result of advice given to her by Mr. Hyland, she wrote a further letter dated 20th December, 1998, to Mr. O’Neill in the following terms:
“Dear Mr. O’Neill,
I am writing further to my recent request for a transfer. I have given the matter much thought and I wish to withdraw my request; I would very much prefer to remain teaching in Tullamore College.
Thank you for your attention in this matter.
Yours sincerely,
Mary O’Toole (Mrs.)”
42. The plaintiff explained her change of mind as being based on two factors. The first of these was that if she was transferred to another school, it could involve having to travel a distance of twenty miles or so, with the consequence of getting home much later, and as a result of this, she would be much later picking up her six-year old son from the crèche. The second factor was that she felt because the matter was now, as she put it, “out in the open”, that Jim Mooney would have to behave himself and therefore she felt a sense of relief, and that she would be safe in the school.
43. On 13th January, 1999, the plaintiff signed a document which was in the following terms:
“13th January, 1999
I retract statement made in Mr. McEvoy’s office on 5th November, 1998, in Mr. T. Bracken’s presence. I won’t repeat it. I regard the unpleasant matter closed.
Mary O’Toole
Witness: T. Bracken”
44. The plaintiff explained the genesis of this document as arising from the continuing threat of a prosecution in respect of the damage done to Mr. Mooney’s car and also the continuing threat of a transfer from Tullamore College. She explained that to avoid these threats, and under duress, she agreed to sign this statement retracting the allegations she made concerning Mr. Mooney on 5th November, 1998.
45. Thereafter, the plaintiff said that she felt that Mr. McEvoy’s attitude to her was absolutely dreadful, appalling. As an example of this, she instanced that on Tuesday mornings, he used to make announcements in the staffroom and he would frequently praise Mr. Mooney. The plaintiff found this really hurtful and would stay in the bathroom until the break was over. The plaintiff said that as the year 1999 went by, every time she had a free class, she went home and lay down and she left the staffroom every day at lunchtime. She said her health totally deteriorated, that she was on a lot of medication for depression and on anti-anxiety tablets and on different stomach medications.
46. During this year, the plaintiff said she stayed out of Mr. Mooney’s way and had absolutely nothing to do with him whatsoever, and that she kept out of the school, out of everything. Her husband, Eamonn, used to ring her every day at lunchtime to see if she was okay.
47. The plaintiff, in her evidence, said that in September 1999, she was approached by Helen Wilson, who asked her to do the newsletter again, as she had done it in the past. The plaintiff said she would not, that she felt very aggrieved at how she had been treated, and that Mr. McEvoy had completely sided with Mr. Mooney. The plaintiff’s evidence was that Ms. Wilson said she would arrange a meeting with Mr. McEvoy so that the plaintiff could sort it out with him. The plaintiff said she had this meeting with Mr. McEvoy in October 1999.
48. The plaintiff’s evidence was that at the meeting, Mr. McEvoy said to her, “Mary, I know you are a ten out of ten and I know that this other person isn’t a ten out of ten, but you’ve got to laugh at this situation because you’ve got your husband to go home to and he has nobody to go home to”. The plaintiff replied to this, saying, “Edward, will you just tell me one thing: did you put him up to sending me the solicitor’s letter that I received on 10th December, 1998?” In response, to this, the plaintiff says that Mr. McEvoy stumbled and muttered and replied, “Well, well, well, I knew he was going to send it”. To this, the plaintiff responded, “Edward, if that is the case, this meeting is over”. The plaintiff then left the office. The letter referred to was the letter of 10th December, 1998, sent by solicitors, Messrs. Larkin Tynan & Company, acting for Mr. Mooney, in which it was stated that over a considerable period of time since May 1997, the plaintiff had pursued and harassed Mr. Mooney and made sexual advances to him, despite his making it clear at all times that he had no interest in any relationship with her. The letter went on to say that in May 1997, Mr. Mooney had to report the plaintiff’s behaviour to the gardaí when she had called to his house in the early hours of the morning, and the letter goes on to mention the criminal damage to Mr. Mooney’s car.
49. The plaintiff said that after this meeting, there was no relationship between herself and Mr. McEvoy. It was her evidence that Mr. McEvoy continued to bully her in subtle ways. In this respect, she cited two incidents, the first being on the day the school broke up for the Easter holidays of 2000, when, she said, Mr. McEvoy came to her class. Because it was the day of the break up for the Easter holidays, she was allowing the children a treat. There were only ten of the class of thirty present. Mr. McEvoy directed her to resume the normal Geography class. On another occasion, a pupil sent out by the plaintiff to get pencils was ordered by Mr. McEvoy to return to the class, notwithstanding that he had explained to Mr. McEvoy that he had been sent out by the plaintiff. On another occasion, the plaintiff said that she herself was in the corridor on her way to get a revision book, when she encountered Mr. McEvoy and was ordered back to the classroom.
50. Another incident that caused the plaintiff great upset was the fact that she was not invited to the wedding of a fellow teacher, Ms. Michelle Brooks, with whom she had been friendly. The plaintiff’s evidence was that she had been informed earlier by Ms. Brooks that she would be coming to the wedding, but closer to the event, Ms. Brooks informed her that she could not invite her to the wedding because of her fear or apprehension that if she did, she might not be made permanent in the school because of Mr. McEvoy’s dislike of or disapproval of the plaintiff.
51. Later in the year 2000, the plaintiff had been greatly upset by the death of a pupil in the school in respect of whom she had been a class tutor. The plaintiff had had a close relationship with this pupil and had assisted her and counselled her in any difficulty she was having in the school. This child was subsequently killed in a road traffic accident. The plaintiff experienced considerable grief following her death, and it was whilst having a discussion with the school Chaplain, Father Gerry Boyle, in the staffroom concerning this, that the final incident in the history between the plaintiff and Mr. Mooney occurred.
52. Whilst the plaintiff was talking to Father Boyle, Mr. Mooney walked into the staffroom. This caused the plaintiff, as she put it, “I just saw red”. She said to Mr. Mooney, “You are a bully, you bullied me once before and you will never do it again”. She went on to say, “You molested me and you can’t molest people and get away with it”. Her evidence was she went on to say to Mr. Mooney, “Now you can run off to Edward and tell him what I’ve said to you”. She went on to say to him, “You are drunkard, that is all you are. Several people have seen you falling out of pubs in the town”. The plaintiff’s evidence was that Mr. Mooney responded by saying, “What are you on about, psycho?”
53. After this, there was a heated and loud discussion which lasted about four or five minutes. The plaintiff’s evidence was that at the conclusion of the discussion, she walked out of the room and as she did, Mr. Mooney was standing in front of her and she brushed against him. She said she did not push him or assault him. He had been standing facing her, and as she went out, she says her elbow probably brushed off his elbow. She denied shoving Mr. Mooney in the back.
54. Following this incident, Mr. Mooney wrote a letter of complaint dated 11th December, 2000, to Mr. McEvoy in the following terms:
“Dear Mr. McEvoy,
I wish to make an official complaint regarding harassment and physical abuse which I received from a member of staff, Ms. M. O’Toole. This incident occurred at 3.30pm on Tuesday 5th December, 2000, in the staffroom of Tullamore College, and was witnessed by Father Gerry Boyle.
The incident occurred as follows . . .
I walked into the staffroom at 3.30pm, the only people in the room at this time were Father J. Boyle and Ms. O’Toole.
I said, ‘hello’ to Father G. and was just walking past him when I was accosted verbally by Ms. O’Toole in an extremely aggressive and high-pitched tone.
From notes taken contemporaneously, I include some of her comments to me.
– ‘you think you’re very smart’
– ‘you won’t get away with it’
– ‘you can’t molest people and get away with it’
At this point, I asked what she was talking about, saying, ‘what are you on about, psycho?’
She continued:
– ‘you know what I’m talking about’
– ‘I know all about you falling down drunk outside pubs’
– ‘I’ve heard all about you’
– ‘you’re a drunkard’
– ‘I suppose you’ll run to Edward and tell him’
– ‘Oh yes, you think you’re great big Jim’
At this point, I had my back to her, and as she was walking past, she pushed me in the back with both hands and then walked out of the staffroom.
As she was leaving, I said to her, ‘you need help’.
The entire incident lasted roughly forty seconds and left me in an upset state. Father G. Boyle was there all through this incident . . .”
55. By a letter dated 12th December, 2000, addressed to Mr. McEvoy, Father Gerry Boyle said the following:
“Dear Mr. McEvoy,
On Tuesday last, 5th December, at 3.30pm, I witnessed Ms. Mary O’Toole shout at Mr. Jim Mooney and call him names in the staffroom of Tullamore College.
Yours sincerely,
Gerry Boyle”
56. Following this incident, when the plaintiff went home, she reflected on matters and concluded that she could not stay in the school, that it would not be good for her health. A meeting took place on 13th December, 2000, with the CEO, Mr. O’Neill, at which a transfer to another school was discussed. Four schools were mentioned as suitable for the plaintiff, namely, Banagher, Clara, Ferbane and Kilcormac. The plaintiff did not wish to go to Edenderry, as she had started off teaching there, and did not wish to return, and in addition, it was a considerable distance from her home. Following this meeting, the plaintiff, by letter of 18th December, 2000, addressed to Mr. O’Neill, formally requested a transfer from Tullamore College, preferably to Clara Vocational School, but if a transfer there was not possible for the coming school year, she requested a transfer to either Kilcormack, Ferbane or Banagher.
57. A further meeting took place between the plaintiff and Mr. O’Neill on 8th January, 2001. On the same day, a letter was written by Mr. McEvoy to Mr. O’Neill, in the following terms:
“Dear Mr. O’Neill,
I wish to draw your attention to a recent incident involving Ms. Mary O’Toole. Please find enclosed copies of the account of the incident.
Given the other incidents which have already taken place, this is a matter of serious concern to me.
Yours sincerely,
Edward McEvoy
Principal
p.s. I also include copies of the legal correspondence and of Mrs. O’Toole’s retraction pertaining to the previous incidents. These were provided along with the copies of the account of this most recent incident.”
58. In the meeting of 8th January, 2001, the plaintiff’s evidence was that Mr. O’Neill suggested mediation, to which the plaintiff agreed. The plaintiff’s evidence was that her husband made a similar request to Mr. O’Neill.
59. The plaintiff became ill in January with Gastritis which was exacerbated by the stress she was experiencing. The plaintiff had recovered and was back at work by 22nd January, 2001.
60. Because she was still feeling bad over everything that had happened, she, at that stage, consulted a solicitor. She had a further meeting with Mr. O’Neill in his office on 22nd January, 2001. The plaintiff’s evidence was that she tried to tell Mr. O’Neill about everything that had occurred but he declined to listen, indicating his only interest was in effecting the transfer request. In the meantime, the plaintiff had received a second solicitor’s letter from Mr. Mooney dated 16th January, 2001, which was in the following terms:
“Dear Madam,
We act for James Mooney of Springlawn, Daingean Road, Tullamore, County Offaly. You will recall that we had occasion to write to you in December 1998 in relation to various matters which had arisen in 1997 and 1998, and in particular, your conduct involving our client during that period. These particular incidences were concluded by you making a retraction of a statement which you had made to the school Principal, Mr. McEvoy, and paying compensation to our client in respect of damage which you caused to our client’s vehicle in December 1998.
Our client instructs us that you have complied with the request made on his behalf in our letter of 10th December, 1998 (a copy of which is enclosed herewith) to desist from any contact with our client in the interim period until an unfortunate incident which occurred on 5th December, 2000. On that occasion, our client instructs us that an incident occurred in the staffroom at the school whereby, without any provocation or contact whatsoever from our client, you verbally and physically abused our client. Our client is concerned, firstly, at the nature of the incident, which occurred on 5th December, and, secondly, that this incident may be a precursor to other incidents similar to those which occurred in 1997 and 1998, and which were the subject matter of our earlier correspondence.
We are writing, firstly, to request a full apology from you in respect of the incident which occurred on 5th December, and, secondly, a firm undertaking that there will be no repetition of such incidents, and, furthermore, that any contact which you have with our client in the future will be purely that necessitated in the course of both your and his employment as teachers in Tullamore College.
Our client has already brought this matter to the attention of the school and educational authorities, and should there be any repetition of this behaviour, then we are putting you on notice that our client will immediately bring the matter to the garda authorities for investigation, as had to do in relation to your conduct on the previous occasion.
We await hearing from you or your legal representative with a full apology in respect of the incident which occurred on 5th December, and also your undertaking that there will be no repetition of such events in the future . . .”
61. After receiving this letter, the plaintiff consulted a solicitor, and with the aid and advice of a solicitor, the plaintiff composed a letter of 25th January, 2001, addressed to Mr. Edward McEvoy, which became the plaintiff’s formal letter of complaint, and reads as follows:
“Dear Mr. McEvoy,
I feel that at this time, I must make an official complaint in respect of my position in Tullamore College.
Since January 1997, I feel I have been the victim of continual and persistent bullying in the workplace. Jim Mooney has been the perpetrator of this bullying and I am not at a point where my health is suffering because of this behaviour.
Over a period of time, he continued to touch me in an inappropriate way which made me feel uncomfortable, in spite of my requests that he stop doing so.
He insulted and belittled me in the presence of teaching colleagues.
Since I was a teacher of Transition year students and he was the Transition Year Coordinator, I was made to feel extremely uncomfortable in my efforts to liaise with him; due to his assuming sexually suggestive facial expressions on numerous occasions when I tried to speak him on curricular matters.
On one occasion, just prior to the Easter holidays 1997, he took my paycheck. I went to his room at 3.30pm to get it. He returned my opened paycheck, made no effort to apologise for taking it, and when I suggested that we needed to speak for moment to clarify matters, he insisted we meet elsewhere outside the school. I stressed I was not interested in such a meeting and that I would appreciate it if he would discontinue making unnecessary physical contact with me.
I later made attempts to speak to him to resolve whatever issues he had with me, but these efforts were rejected in a most disrespectful manner and he later represented these efforts on my part as evidence of sexual harassment when, in truth, he had requested sexual favours from me.
I later made complaints to school management concerning his behaviour, but I feel these complaints were not taken seriously and this has contributed to the deterioration in my health.
I now call on you to deal with my complaints and take whatever action is necessary to make my working environment the safe place it should be.
Yours sincerely,
Mary O’Toole”
62. This letter was handed by the plaintiff to Mr. McEvoy on the morning of Friday 26th January, 2001.
63. The plaintiff’s evidence was that she gave this letter to Mr. McEvoy at about 10.00am, and about half an hour later, she said Mr. McEvoy called her into his office and in an aggressive way said to her, “Leave the door open”, and he then handed her a booklet on sexual harassment, or how to deal with complaints of sexual harassment in the school, and he informed her that two people had been designated to deal with her complaint, namely, Ms. Colette Lee and Mr. Tom Donoghue.
64. The plaintiff contacted Colette Lee at lunchtime and made an arrangement to meet on the Monday. The plaintiff made no arrangement with Mr. Donoghue as she failed to see him that afternoon.
65. That afternoon, at approximately 3.30pm, as the plaintiff was leaving the staffroom, the plaintiff’s evidence was that Mr. McEvoy informed her that Mr. O’Neill wished to see her in his office at 4.00pm. The plaintiff met Mr. O’Neill at 4.15pm, accompanied by her husband.
66. At the meeting, the plaintiff’s evidence was that she was informed by Mr. O’Neill that he had arranged a transfer of the plaintiff to Edenderry with effect from the following Monday morning. The plaintiff felt the choice of Edenderry was a vindictive one, as it was the only school that she had indicated to which she did not wish to be transferred. The plaintiff accepted the transfer. The minute of this meeting of 26th January, 2001, is in the following terms:
“Meeting with Mary O’Toole, Friday 26th January, 2001
Present: Edward McEvoy, Diarmuid O’Neill and Mary O’Toole
Agenda
To find a resolution to the difficulties which have come to light in Tullamore College between Mary O’Toole and Jim Mooney
Diarmuid O’Neill outlined:
• The possibility of a transfer from Tullamore College to Oaklands Community College, Edenderry.
• Also outlined the need to end all aspects of the dispute between the two parties.
• Sought and received a guarantee from Mary O’Toole that the accusations and written allegations would stop immediately.
• Informed Mary O’Toole of the arrangement made earlier with Tony Banbrick, Principal at Oaklands Community College and requested her to report to Oaklands Community College on Monday morning 29th January, 2001, at 9.00am.
• Informed Ms. O’Toole that all of the above would continue only if she honoured her promises.
• Informed Ms. O’Toole that similar guarantees to be given by Jim Mooney.”
67. The plaintiff reported for duty to Oaklands Community College, Edenderry, on the following Monday morning, 29th January, 2001, but was very distressed by the arrangements put in place for her there, in particular, that she was not given a proper timetable; she was put in front of a class to teach Irish, but she was not an Irish teacher. After the plaintiff arrived in Edenderry, she received a formal letter of transfer dated 26th January, 2001, from Mr. O’Neill, which was in the following terms:
“A Chara,
Further to your written request for a transfer from Tullamore College, I am pleased to inform you that I am now in a position to offer you a voluntary transfer to Oaklands Community College with a starting date of Monday 29th January, 2001.
Please let me know as soon as possible that you will/will not accept this offer . . .”
68. By a letter of 5th February, 2001, addressed to Mr. O’Neill, the plaintiff formally replied in the following terms:
“Dear Mr. O’Neill,
Further to your letter of 26th January, last, I wish to inform you that I am refusing your offer of a voluntary transfer to Oaklands Community College, Edenderry.
In December 2000, I requested a transfer to Clara, Kilcormac, Ferbane or Banagher. I now wish to withdraw this request entirely.
Thank you for your attention.
Yours sincerely,
Mary O’Toole”
69. The plaintiff’s evidence was that her mental and physical health had deteriorated badly and she had to go out on stress leave at that stage. The plaintiff was out on medical certificates up until May 2001. By letter of 23rd February, 2001, from Brian P. Adams & Company, solicitors, on behalf of the plaintiff, addressed to Mr. O’Neill, the following was said:
“Dear Sir,
I confirm that I act for the above-mentioned Mary O’Toole and refer to your letter to her of 26th January, last, and her reply on 5th February.
In view of the clearly expressed intention of my client that she wishes to refuse the transfer offered to Edenderry Vocational School, please confirm to me that my client’s post in Tullamore Vocational School is open to her when she is medically certified to be fit to return to work.”
70. By a letter of 29th March, 2001, Mr. Mooney replied to the plaintiff’s letter of formal complaints dated 25th January, 2001, in the following terms:
“With regard to this letter, I wish to state for the record in the strongest possible terms, that I vehemently deny the accusations made by Ms. O’Toole. The single exception to this is the incident relating to her payslip, the details of which she also lied about. The remainder of the allegations are completely fictitious without any grounding in truth whatsoever.
In relation to the payslip, this incident occurred around March 1997. The teachers’ payslips are normally left in the individual teacher’s pigeonhole at 10.20am on payday. I mistakenly took Ms. O’Toole’s payslip from her pigeonhole, which was beside mine, when I was going to class after the 10.20am break. I opened it in class without looking at the name on the envelope, looking at the net amount, returned it to my pocket, still thinking it was mine. Roughly thirty minutes later, Ms. O’Toole called to my class and asked me if I had taken her payslip. I looked at the name on the envelope, saw my mistake, immediately apologised for taking and opening it, then returned it. My apology for this genuine mistake was made clear at the time.
Ms. O’Toole has made a previous complaint regarding me to Mr. McEvoy, made on 5th November, 1998, which she has retracted in writing. This false accusation I have also categorically denied.
Also, I wish to state for the record, that the reverse of these allegations is, in fact, the case, in that Ms. O’Toole has consistently harassed and pursued me, both inside and outside of school. All of her advances have been rebuffed unequivocally.
Any and all dealings which I have had with Ms. O’Toole in the school have been carried out in a professional manner.
With regard to the outrageous allegation made by Ms. O’Toole in her letter dated 25th January, 2001, I would like an opportunity to discuss this matter with a view to exploring options available to me in order to set the record straight through the offices of the VEC . . .”
71. By letter dated 2nd May, 2001, the plaintiff’s solicitors, wrote to solicitors for the defendants, as follows:
“Re. Mary O’Toole v. County of Offaly Vocational Educational Committee
Dear Sir,
I refer to the above-mentioned matter and confirm the advice of counsel, my client has now decided to institute proceedings against your above mentioned client.
Kindly confirm you have authority to accept service.”
72. Following on this letter, proceedings were commenced in this case by the issuance of a Civil Bill on 14th May, 2001.
73. In May, when the plaintiff was fit to return to work, the plaintiff wrote to Mr. O’Neill by letter of 22nd May, 2001, as follows:
“Dear Mr. O’Neill,
I wish to inform you that my doctor has certified that I may return to work on 28th May.
Further to previous correspondence, I will attend at Edenderry under protest, as I do not accept the transfer as previously stated.
I expected the VEC to resolve my position before term commences in September.
Thank you for your attention in this matter.
Sincerely yours,
Mary O’Toole (Mrs.)”
74. Towards the end of May 2001, the plaintiff was offered a transfer to Ferbane Community College, which she accepted. The plaintiff commenced teaching in Ferbane in September and has been there since.
75. On 6th June, 2001, a fire occurred in Tullamore College. A garda investigation ensued into the circumstances of this fire. During the summer months, a search of the plaintiff’s house was conducted on foot of a Search Warrant issued in connection with this investigation, and the plaintiff was arrested and detained under s. 4 of the Criminal Justice Act 1984, in connection with this investigation. No charges were ever brought against the plaintiff who was greatly upset and aggrieved by these events and believed that her arrested was actuated by information furnished to the gardaí by the school authorities. The plaintiff has initiated other proceedings concerning these matters.
76. In his evidence, Mr. Mooney told a story which, not only diametrically contradicted every aspect of the plaintiff’s evidence, but was to the effect that far from him sexually harassing the plaintiff, it was the other way about, that he was subjected to repeated, unwanted sexual advances by the plaintiff, which he repeatedly and unequivocally rebuffed. Mr. Mooney told the court that he commenced his career as a teacher in 1990 and started in Tullamore College in 1993. Following the commencement of his teaching course, he did a Master’s course and finished off this after starting in Tullamore in 1993. In his Master’s Degree, he achieved Honours with a 1.1 grade. Later, he did a Higher Diploma in Education Management, whilst teaching fulltime in Tullamore College.
77. Between 1993 and 1996, his evidence was that there were no issues arising between the plaintiff and him in regard to their professional relationship in the school. Early in 1997, he noticed an unusual number of interruptions by the plaintiff into his class for frivolous reasons. He felt that these were happening too often.
78. He described the incident which occurred towards the end of March 1997 over the paycheck. He said that he had mistakenly taken the plaintiff’s paycheck and had opened it, but had only seen the net amount and not the name, and had folded it and put it in his pocket, and when the plaintiff came to his class and broached the matter, he took it out of his pocket and saw that it was her paycheck, and his evidence was that he apologised to her for his mistake. He said that before she left, the plaintiff handed him his paycheck. He said he apologised to her three times. His evidence was that their pigeonholes were side by side.
79. He said the first time that the plaintiff was in his house was in late April 1997, that at that time, he had been out sick for a couple of days, having had treatment for his back. He said she came around at lunchtime, uninvited. Mr. Mooney was just out of bed and was not very well able to move because of his back injury. She came around to see how he was and he invited her in for a cup of tea and the visit lasted approximately ten minutes.
80. Mr. Mooney next described a major incident occurring on 25th May, 1997, the occasion when the plaintiff came to Mr. Mooney’s house, having had a few drinks with a friend of hers. Mr. Mooney said he had been out for a drink with the two men with whom he shared the house, namely, Christy Doherty and Louis O’Keeffe, both of whom gave evidence. He said they went out at about 9.00pm and he, Mr. Mooney, came home about 11.00pm and the other two arrived back within an hour and they watched TV for about an hour, after which the plaintiff and Mr. Doherty went out to the garage to play a game of pool. At about 1.30am, Louis O’Keeffe came out to him and said, “There’s a woman inside to see you”. Mr. Mooney went into the dining room where the plaintiff was. He described her as close to drunk and slurring her words. He remembers her saying, inter alia, “don’t be afraid, I only want to be with you” and “I just want to talk to you”. Mr. Mooney said he kept repeating to her that she would have to go home and that she could not stay and would have to leave, but that he did not seem to be getting through to her. Eventually, he did persuade her to leave. As she was leaving, she said she could not find her keys. Mr. Mooney said he realised then that she had driven down. This led to a search for the keys, for which the porch light was put on. Mr. Mooney asked Christy Doherty to put on the headlights of the car to shine on the driveway. They searched everywhere for the keys, including the door handle of the car, and even shone a torch into the plaintiff’s purse. Mr. Mooney said to his companions that he would have to leave her home and he went down and got his keys and drove the plaintiff home. Mr. Mooney was very annoyed at this stage, and said nothing to the plaintiff as he drove her home. He returned to his house and he and his two housemates were in the kitchen when, after about fifteen minutes, the doorbell started ringing persistently. Realising who it probably was, Mr. Mooney said to Louis O’Keeffe, “I’m not answering that. If that is Mrs. O’Toole, I said, if she doesn’t go away, tell her to go away, and tell her if she doesn’t go away, I said to him to ring the guards”. Louis O’Keeffe answered the door and Mr. Mooney could hear the front door opening and closing a number of times. He heard Louis O’Keeffe relay to the plaintiff what Mr. Mooney had said, but she kept ringing the doorbell, and his evidence was that she then started shouting in the letterbox. At that stage, Louis O’Keeffe picked up the phone and rang the guards. The plaintiff then disappeared and her car was left parked out in front. The gardaí arrived down within about fifteen minutes. Mr. Mooney went out in front with Louis O’Keeffe and explained to the guards what the situation was, that there was a woman making a nuisance of herself. Mr. Mooney did not give the plaintiff’s name to the gardaí.
81. The following day, Mr. Mooney said he received a phone call from the plaintiff which he described as “extremely weird”, asking Mr. Mooney “what about us?”
82. The next day, which was Monday, his evidence was that the plaintiff interrupted his class and came in, that Mr. Mooney was abrupt with her and she gave him a letter and asked him to read it. He said he did not, and folded it and put it in his pocket. Later, as he was leaving school, at about 3.30pm, as he was close to the Exit door, he said the plaintiff interrupted him and asked him for a lift home, saying she wanted to speak to him. Mr. Mooney said that he absolutely refused and left. He said he read the letter a day or two later. This was the letter written by the plaintiff which the plaintiff said she wrote while supervising an examination on that day. Mr. Mooney said that after he read the letter, he put in a drawer in his house and left it there. He said he had received notes from the plaintiff before that, which he had ripped up, but he decided to keep this letter because he thought some of the content of it was “scary”. The letter remained in the drawer until the plaintiff made accusations against Mr. Mooney in November 1998. He said he woke up in a cold sweat, one night, and wondered whether he still had the letter.
83. After the incident on 25th May, and the receipt by Mr. Mooney of the letter, he said he noticed nothing untoward with regard the plaintiff for the rest of the year, until a staff social event in Kinnitty Castle at Christmas 1997. A bus had been organised to take people there. His evidence was that nothing unusual happened during the social event, and on the way home on the bus, the plaintiff invited a few people in for a drink afterwards. Mr. Mooney was on the bus at the time, and when she invited him, he said, “no thanks, I’m going to head home”. He said she persistently invited him a number of times, to which he replied, “Okay, sure, I will go in for one”. His evidence was that he stayed for about an hour or an hour and a half, and it was uneventful and there were no arguments or no shouting of abuse at the plaintiff concerning her or her mother and no arguments with male teachers, nothing of that kind happened. Mr. Mooney denied insulting the plaintiff or using strong language and said he had never met the plaintiff’s mother and knew nothing about her. He said there were a number of people still there after he left, and at no stage during the night was he alone with the plaintiff. The reason he had gone to the plaintiff’s house was because he felt that calling the guards in May had been a bit heavy handed and going to the plaintiff’s house would neutralise or normalise things.
84. Mr. Mooney said the next event of relevance occurred in March 1998, when the staff of the school attended a performance of ‘D’Unbelievables’ in the Tullamore Court Hotel. Mr. Mooney was there and so was the plaintiff. At the interval, Mr. Mooney noticed the plaintiff at the far side of the foyer, where she was crying and being consoled by Tom Bracken. Mr. Mooney had no idea what was amiss. After the show was over, they stayed on for a drink. Mr. Mooney was with a different group to the teachers, he having attended with friends of his. They were joined by Tom Bracken, a teacher, who asked Mr. Mooney if he could stay in his house that night, to which Mr. Mooney agreed. The plaintiff then joined Mr. Mooney’s company, uninvited. Mr. Mooney says he did not speak to her at all. Mr. Mooney went home after about half an hour with Christy Doherty who was driving. About half an hour later, there was a knock at the door. Tom Bracken was there and there was another car in the driveway with the plaintiff and another teacher, P.J. Hanlon. Mr. Mooney informed Mr. Bracken that he was welcome to stay the night, but that the plaintiff was not coming in.
85. On 29th May, which was a Friday, the school was breaking up for summer holidays. Mr. Mooney said that staff were meeting in the Brewery Tap public house. He went there around 5.00pm. The plaintiff was there, as was Tom Bracken. Mr. Mooney said that he was speaking with Mr. Bracken for most of the time, and Mr. Bracken asked if he could stay over in Mr. Mooney’s house, which he did. The plaintiff also came back to Mr. Mooney’s house. She arrived with Mr. Bracken at around 8.00pm, apparently having shared a taxi with Mr. Bracken. Mr. Mooney invited them in, and when they went to the front room, Mr. Mooney brought in drinks for both of them. He said they chatted for about an hour, when Mr. Mooney took a personal phone call from his girlfriend which lasted for about half an hour. Another teacher, P. J. O’Hanlon, had been there for about fifteen minutes or so. At about 11.30pm, Mr. Bracken made a phone call to New Zealand. At about that time, Mr. Mooney went upstairs and made a bed for Mr. Bracken which took about twenty minutes. When he came back down, the TV was on and Mr. Bracken was in the front room and had nodded off. He said the plaintiff was in the kitchen cum dining room. She was sitting on the floor reading a magazine. Mr. Mooney said he went in and he sat on the couch opposite her and there was some chitchat. He said he rested on the couch and put his head back and closed his eyes for a minute and the next thing he knew was that the plaintiff had gotten from where she had been, over to between his legs. He said she was resting her arms on his knees and letting her hands kind of rest down. She was in that position for a minute or so, and then started telling Mr. Mooney how much she liked him. He said he had a good bit of drink on board at that stage. He said that she started moving her hands up his inner thighs and started fumbling with the buttons of his fly. At that point, he said he put his hands on her shoulder and moved her back and made light of it, that he laughed at it. He says she took that as an offence rather than the way it was intended, and that she was simpering rather than crying, and he said to her, “listen, you’re going to have to leave, I’m going to bed”. After that, Mr. Mooney roused Mr. Bracken and showed him where he was sleeping upstairs, and when he came back down, Mr. Mooney says the plaintiff was still there. At this stage, Mr. Mooney started turning off the lights and locking up. His evidence was that he said to her; she had her coat on at this point, in the hall, “look, you can do what you like, I am going to bed”. He then turned around and started going upstairs. When he was a third of the way up the stairs, she started following him up the stairs. He said he turned around and had to usher her out of the house.
86. Mr. Mooney denied, on this occasion, exposing his penis to the plaintiff, or that she ran from the house. His evidence was that the plaintiff rang the following day or the day after. He did not know where she had got his number as he had never given it to her, and the only thing that stuck in his memory from that phone call was that she said, “did last night mean nothing to you?” She also mentioned that she had left her purse in the house and asked to go up and collect it, to which Mr. Mooney replied, “No way. I will give it to Mr. Bracken and he can return it to you”. Mr. Mooney’s evidence was that he heard nothing during the summer holidays of that year.
87. Mr. Mooney described an incident in Spallins public house where a number of teachers had gathered informally after the summer holidays of 1998. He said he had been talking to Michelle Brooks and complimented her on her hair, and as he was speaking to her, the plaintiff interrupted, to which Mr. Mooney responded by saying, “I wasn’t speaking to you, you’re rude”. He explained this in his evidence as having been a little bit out of place, but because of the history at that stage, he wanted as much distance as possible. In his evidence, he said that he described as “rubbish” suggestions by the plaintiff that the tannoy system could be used by the Principal to eavesdrop on what was said in class. He said these remarks were made in a group and not one-to-one with the plaintiff, and she seemed to be very put out by his comments.
88. His evidence was that when he left this gathering to go home, he went to his car which was parked in the parkway and he said that the plaintiff followed him over to his car, that he did not realise this until he got into his car and she held the door and prevented him from closing it. He said she kept asking him to stay and not to go home, and then she wanted to get into the car and go home with him and would not let him close the door. Mr. Mooney said that he used very strong language to tell her where to go, as nothing else seemed to be getting through.
89. Mr. Mooney described the next incident as occurring on 12th October, 1998, when he was in the gymnasium beside the school and the caretaker informed him that somebody had damaged his car. He went out and saw the tyre was flat. As he was changing the tyre, he noticed a slash mark, about an inch or an inch and a half, and then he noticed that his aerial was completely broken off. The matter was reported to the gardaí. Mr. Mooney said that when he brought his car to the garage, it was drawn to his attention that the front right tyre was slashed as well, but not punctured.
90. On 23rd October, 1998, there was another social gathering of teachers in the school, in Hugh Lynch’s pub in Tullamore. Mr. Mooney said he was there, as also was the plaintiff. At the end of the evening, Mr. Mooney invited a few people back to his house, but pointedly did not invite the plaintiff. The small number he invited back got taxis to his house. The plaintiff, however, arrived in with some other people and Mr. Mooney did not make an issue of it. While she was in the house, Mr. Mooney said he did not speak to her, that he pointedly kept his distance. Mr. Mooney said that event did not go on very long. He then arranged for taxis to take people home. He said his housemate, Christy Doherty, who had been in bed, got up and joined them. He said that a really weird thing happened, that as he was going out from the kitchen, going up to the bathroom, the plaintiff popped out from the front living room, the door was ajar and the room was in darkness. He said she appeared to have been hiding there for about a half an hour since she seemed to have left and gave him a fright. Mr. Mooney said that he unceremoniously put her out of the house again. At that stage, he did not know who had slashed his tyres.
91. On 2nd November, 1998, Mr. Mooney said he was called to a meeting with the CEO, Mr. O’Neill, and Mr. McEvoy, and was asked did he know who had damaged his car, to which he replied that he had no idea who had done it. Mr. Mooney said he was asked that if a member of staff had done it, who did he think it might be, to which he replied, there was only one member of staff he was having trouble with, and that was the plaintiff.
92. Mr. Mooney said that three days later, on 5th November, 1998, Mr. McEvoy called him into his office in relation to the damage to his car and said to him, “Mrs. O’Toole is after making very serious allegations about you in your house on 29th May of ‘98”. He went on to say that the tenor of the allegation was that he, Mr. Mooney, had looked for sexual favours from the plaintiff and that he had exposed himself. Mr. Mooney described himself as gobsmacked when he heard this, and completely refuted and denied utterly what was put to him. He decided at that stage that he had better go and see a solicitor and he went to Mr. Eddie Tynan of Tynan Larkin in Mullingar and instructed that solicitor to write a letter to the plaintiff. At this stage, a letter dated 10th December, 1998, was sent to the plaintiff. That letter stated the following:
“Dear Madam,
We act for Mr. James Mooney of Springlawn, Daingean Road, Tullamore, County Offaly. Our client instructs us that over a considerable period since May 1997, you have pursued and harassed our client and have made sexual advances to him, despite our client making it clear to you at all times that he had no interest in any relationship with you other than the normal necessary working relationship, as required, due to the fact that you are both teaching in the same school.
Our client instructs us that in May 1997, he had to report your behaviour to the gardaí when you called to his house in the early hours of the morning and he also handed us a letter which you wrote in or about the month of May 1997, to him, following that incident.
In the intervening period, you have persisted in this type of behaviour, despite our client’s constant efforts to discourage you from so doing.
We are further instructed that on the 5th ult. his car was damaged while parked outside the Tullamore College gym and we were instructed that you have admitted causing criminal damage to our client’s vehicle on that date in question. It would appear that such an admission has been made to the garda authorities and the school authority.
We are writing to put you on notice that unless we receive from you an undertaking that you will have no further contact with our client, except for normal professional contact in the course of your employment in Tullamore College, that we are under strict instructions to issue proceedings against you arising out of the above matters. We also require your proposals to fully compensate our client for the damage to his motor vehicle.
We await hearing from you.
Yours faithfully.”
93. This letter was responded to by a letter written by Ms. Carmel Kinsella, Leahy & Company, Solicitors, instructed by the plaintiff dated 15th December, 1998, which says the following:
“Our client: Mrs. Mary O’Toole
Your client: Mr. James Mooney
Dear Sirs,
Your letter of 10th December last, addressed to our client has been passed to us.
Our client categorically denies that she pursued, harassed or made sexual advances to your client. She is equally adamant that she does not wish any further contact with your client except as set out in your letter for normal professional contact in the course of their employment. With reference to your client’s request for compensation for damages to his car, we should point out that Ms. O’Toole consulted with Mr. D. O’Neill, CEO for County Offaly and Mr. E. McEvoy, and agreed to compensate Mr. Mooney for the damage to his car. It was understood that Mr. McEvoy was to obtain an invoice from your client.
Please note that our client is still awaiting receipt of the invoice for damage done to your client’s car, and has in the past couple of weeks again requested the invoice from Mr. McEvoy. Perhaps you would forward your client’s invoice for damages to ourselves and we shall pass it on to Mrs. O’Toole.
Yours faithfully.
94. A further letter of 22nd January, 1999, was sent by Mr. Mooney’s solicitors to the plaintiff. Mr. Mooney said he told Mr. McEvoy that he was going down the legal route and he said Mr. McEvoy suggested that Tom Bracken might try to mediate, he being friendly with both the plaintiff and Mr. Mooney, and he was also the TUI rep in the school. Mr. Mooney said he agreed to that, and as a result, a kind of shuttle diplomacy between him and the plaintiff developed over the Christmas period. Mr. Mooney said that he wanted was a retraction of the allegation made by the plaintiff. Mr. Mooney said he received “a kind of mini-mouse” retraction in writing on 13th January, 1999. Mr. Mooney said he was content with the retraction, having checked with the Deputy Principal and the Principal and the CEO to make sure that there were no other allegations or mistruths and no other issues outstanding at that time.
95. Mr. Mooney vehemently denied the evidence of the plaintiff concerning him slithering down the wall of a large assembly room, making a pouting or salacious gesture as she was handing the register to him. He also denied the plaintiff’s evidence with regard to him lowering the window of his car, offering her a ride home in a salacious manner. He said this never happened. He also denied leering at the plaintiff and said he avoided eye contact with her and never leered at her. He denied rubbing the strap of her bra outsider of her clothes on a number of occasions in the staffroom. He did say that, on one occasion, he touched her by leaning over to get a mug and he rested a couple of fingers on the corner of her shoulder to keep balance. He said he remembered this because at the time, he had formed the impression that she had a crush on him. He said this happened in early 1997. Mr. Mooney denied belittling the plaintiff’s ideas in discussion with other teachers, or using foul language in that context.
96. Mr. Mooney said that all through 1999 there were no problems or issues arising between himself and the plaintiff. In the year 2000, he gave evidence of what he described as a number of minor incidents. The first was when he, Mr. Mooney, was speaking to a teacher in the staffroom and the plaintiff interrupted. She had two copies from students who were copying homework for Mr. Mooney’s subject in her class. His evidence was she threw them at him and was extremely rude, but he ignored her. Another incident occurred at the end of a parent teacher meeting when he was in the room on his own. The plaintiff came in and wanted to know why Mr. Mooney had got solicitors involved. He said his response to this was to put up his hand to her and say, “I’m not speaking to you”. He said that in November 2000, when he thought he was in the staffroom alone, the plaintiff came in and hit him “a couple of digs in the ribs”. He says he did not make anything of that. Later, he realised it had been witnessed.
97. His evidence in relation to the incident on 5th December, 2000, was that he came in about 3.25pm to the staffroom, when the plaintiff and Father Gerry Boyle were there and he walked by and said hello to Father Gerry. He said the plaintiff launched into a tirade of abuse, saying, “You’re drunk”, “you’re a drunkard, I know all about you falling down around the town. You won’t get away with abusing people.” He replied, saying, “I don’t know what you are on about, psycho”, “what are you on about, psycho?” Mr. Mooney said he turned his back on her, and then as she was walking past him, with her two hands she pushed him quite forcefully in the back. As she was leaving, Mr. Mooney said to her, “you need help”.
98. Following this, Mr. Mooney made a complaint because he thought, “enough is enough” and because of the previous assault in the staffroom. He made a complaint to the VEC and to the union. He gave the letter to Mr. McEvoy and asked him to forward it to the VEC and met the union rep, Tom Bracken, and gave both of them a copy of the letter. This was on 11th or 16th December, 2000. He also instructed his solicitor to write a letter to the plaintiff dated 16th January, 2001. The text of this letter is quoted above.
99. The letter of 16th January, 2001, was replied to by a letter from Brian P. Adams & Company for the plaintiff, which Mr. Mooney received on 5th March, 2001.
100. Mr. Mooney said he met with the CEO and the Principal on 26th January, 2001, arising out of a complaint he had made. The plaintiff’s formal letter of complaint dated 25th January, 2001, was discussed at this meeting and the letter was given to Mr. Mooney. He read the letter and categorically denied everything that was in it. Mr. Mooney said that Mr. O’Neill suggested a face-to-face meeting between the plaintiff and Mr. Mooney, but Mr. Mooney ruled that out. Mr. O’Neill then suggested mediation which Mr. Mooney agreed to consider. Before agreeing to this, he wanted to consult his solicitor in connection with the plaintiff’s letter of complaint of 25th January, 2001. Mr. O’Neill then suggested the IVA TUI Code of Conduct, Code of Procedure, and Mr. Mooney said he would agree to that. The application by the plaintiff for a transfer from Tullamore College was also discussed at this meeting.
101. Subsequently, Mr. Mooney commenced a case for defamation against the plaintiff in these proceedings, which is still pending.
102. A number of witnesses have given evidence which sheds some light on the relationship between the plaintiff and Mr. Mooney and are of considerable assistance to me in resolving the conflict of evidence between them.
103. Mr. Louis O’Keeffe and Mr. Christy Doherty were housemates of Mr. Mooney at the end of May 1997, and were present in the house that night when the plaintiff called. Mr. O’Keeffe denied that the plaintiff called to the house at around 6.00pm. His evidence was that when she came, it was well after midnight, possibly 1.30am or 2.00am. Mr. O’Keeffe was watching TV in the room nearest the front door. He said Mr. Mooney and Mr. Doherty were in the garage in a separate building at the back, playing pool. The doorbell rang and Mr. O’Keeffe answered and it was a woman who wished to speak to Mr. Mooney. Mr. O’Keeffe had never seen her before, but now knows her to be the plaintiff. Mr. O’Keeffe went out and spoke to Mr. Mooney and told him there was a woman to see him. He asked who it was, but Mr. O’Keeffe did not know, and then Mr. O’Keeffe returned to the TV. The plaintiff, in the meantime, had stepped inside, into the front hall. The door between the TV room and the hall was closed, but Mr. O’Keeffe could hear a muffled conversation between the plaintiff and Mr. Mooney, and although he could not hear any details, he had the impression that whatever the plaintiff wanted, Mr. Mooney was not prepared to give. Mr. O’Keeffe then turned up the TV so that he could not hear. He said he could hear the plaintiff saying, “I just want to be with you” before he turned up the TV. He said that after a period, he did not know how long, they had left the front hall and he thought they had gone outside. At that stage, Mr. O’Keeffe went upstairs to bed. He said a good while later, possibly an hour, there was a persistent ringing of the doorbell. By persistent he said he meant that it rang once, and nobody answered, and whoever it was, rang it again and again and continued to ring it. Mr. O’Keeffe said he eventually got sick of this and got up, put on some clothes, and went downstairs. The light was on in the kitchen and Mr. Mooney was there and beckoned him into the kitchen. Mr. Mooney said to Mr. O’Keeffe, “I don’t want to talk to her”. Mr. O’Keeffe opened the door and the plaintiff was there. She said, “Can I speak to Jim, I just want to talk to Jim”. Mr. O’Keeffe described her as unsteady on her feet, slurring her words, and that she was quite persistent and wanted to speak to Mr. Mooney. He said he made it clear to her that Mr. Mooney did not want to speak to her and that she should go home. This went on for some time and, eventually, Mr. O’Keeffe closed the door. Mr. O’Keeffe’s evidence was that as soon as he did this, the plaintiff proceeded to ring the doorbell again. He opened the door and he said, the plaintiff said, “I want to speak to Jim. I really need to speak to Jim; I just want to be with him”. He said the phrase “I just want to be with him” kept reoccurring. Mr. O’Keeffe said that he told the plaintiff that Mr. Mooney did not want to speak to her and that she should go home, and that he would have no option but to call the guards because she was making a nuisance of herself and he was tired and wanted to go to bed. He closed the door again, and the plaintiff started ringing the bell again, and this time started shouting in the letterbox that she wanted to speak to Jim, that she just wanted to be with Jim and could he please come to the door. Mr. O’Keeffe said he made it clear that if she persisted, he would call the guards. She did persist and he did call the guards. He said, she listened to his conversation on the telephone and in response to Mr. O’Keeffe’s complaint to the gardaí that there was a woman at the door making a nuisance of herself, she shouted in the letterbox, “I am not making a nuisance of myself”. He said that the plaintiff left at that point. Mr. O’Keeffe denied taking any part in the search for the plaintiff’s keys and was adamant that when the plaintiff returned, she never asked him for keys.
104. Evidence was also given by Mr. Christy Doherty who, in 1997/1998, was the third co-tenant of this house on the Daingean Road in Tullamore with Mr. Mooney and Mr. O’Keeffe. His first recollection of the plaintiff, whom he recognised in court, was the evening in question in May 1997. His evidence was that the plaintiff came to the house on two occasions. He agreed with Mr. O’Keeffe’s evidence concerning the events which occurred on the visits which he witnessed. Mr. Doherty was present in the hall when the plaintiff came back to the house and was shouting through the letterbox. He said there were a number of things shouted, but she shouted, “I just want to be with you, I just want to be with you, Jim”. Mr. Doherty said that on the initial visit, he was in the garage playing pool with Mr. Mooney, and remained in the garage for five to ten minutes after Mr. Mooney went to the front door, at which stage he decided to go back into the house. At that stage, he found Mr. Mooney looking for keys, with the lights on in the front hall and the front porch. He said Mr. Mooney explained to him that they were looking for the plaintiff’s keys. Mr. Doherty asked if he could help and was asked to go out the back to see if he could find anything. Mr. Doherty went out and turned on the lights of his car, which was parked in front of the garage. He said because they could not find the keys, Mr. Mooney decided to drive the plaintiff home.
105. Mr. Doherty was adamant that when he went out through the back of the house, it was solely for the purpose of getting to his car to turn on the lights and not to search for the keys in the house. Mr. Doherty denied that he had spoken to the plaintiff at 6.00pm when she said she came to the house. He said at that stage, when he left the poolroom, the search for the keys was just beginning and Mr. Mooney was turning on lights. He said the search went on for ten or fifteen minutes at most. His evidence was that this search for the keys took place on the plaintiff’s first visit. He said that he was still up when the plaintiff returned the second time. He and Mr. Mooney were chatting over events and it was approximately 2.30am or 3.00am.
106. Mr. Doherty recalled a second incident, approximately a year later, after attending the performance of ‘D’Unbelievables’ in the Tullamore Court Hotel, when Mr. Mooney refused to allow the plaintiff to come into the house after that event.
107. Mr. Doherty recalled a third incident occurring after Mr. Mooney and a number of teachers came back to the house after a night out in October 1998, when, after Mr. Mooney had organised taxis for the people to leave, Mr. Mooney informed him that the plaintiff had been hiding in the front room and he had to get her out
108. I am quite satisfied that the evidence of both Mr. O’Keeffe and Mr. Doherty was truthful and accurate. I accept their evidence as to what was said by the plaintiff when she came to their house, twice, on the evening in question in May 1997. What they heard her say on both these occasions is wholly inconsistent with the plaintiff’s evidence that the purpose of her visit was to discuss Mr. Mooney’s misbehaviour towards her. I am quite satisfied that the purpose of her ill-advised, if not intemperate visit, was simply to express her own interest in Mr. Mooney.
109. It would have been quite extraordinary, indeed, and highly improbable, that anyone, including the plaintiff, who wished to discuss with Mr. Mooney misconduct of the kind alleged by the plaintiff, would take the extraordinary step of going to his house so late at night, and after a celebratory occasion, when she would have known well that, apart from herself, it was quite likely that Mr. Mooney might have consumed some alcohol during the course of the evening. This was most unlikely to be the strategy of someone wishing to discuss a grievance concerning the behaviour of another and to rectify and/or normalise a professional relationship. The far more probable explanation is that the plaintiff, having cast caution to the wind, undertook this escapade as a desperate attempt to advance or develop a romantic relationship with Mr. Mooney. I find it impossible to reconcile her shouting through the letterbox the things which I accept she said, with any intent on her part to have a discussion with Mr. Mooney concerning his alleged misbehaviour or concerning normalising the professional relationship between them.
110. It is interesting to contrast the plaintiff’s evidence to the effect that, at the end of her discussion with Mr. Mooney in the paycheck incident just before the Easter break in 1997, she said she would not meet Mr. Mooney anywhere to discuss matters. Yet, less than three months later, and notwithstanding that nothing occurred between them, apart from her claim to have been moved out of the way by Mr. Mooney in a corridor, she not only meets him elsewhere, but goes to his house late at night to have her discussion. I find her evidence in all of this wholly incredible.
111. This brings me to the letter written by the plaintiff on the Monday after the incident at Mr. Mooney’s house. On the face of it, this is a letter which is redolent of romantic interest by the plaintiff in Mr. Mooney and of a very urgent desire on her part to discuss this with him. The plaintiff, however, vehemently denies that this was the meaning or intent of the letter. Her explanation of it was that in order to get through to Mr. Mooney to discuss his sexual harassment of her, and having failed hitherto to have achieved that, she adopted a conciliatory, if not ingratiating, approach in order to, as it were, disarm him, or not to cause him to become defensive, and thereby resist or repel what she had to say to him. In this regard, she was supported by the expert evidence of Dr. Anne Leader, to the effect that victims of harassment and bullying often adopt such a posture when attempting to achieve a resolution of the conduct objected to.
112. I am wholly unconvinced by this explanation and do not accept it for the simple reason that it is wholly at variance with the true facts which would, of course, have been unknown to Dr. Leader who was dependent upon the plaintiff’s reporting of events. What was said and done by the plaintiff at Mr. Mooney’s house on the night in May 1997, just before this letter was written, provides an illuminating insight into the plaintiff’s state of mind, so far as Mr. Mooney was concerned, which was one of romantic interest in him, and the letter, in my opinion, is wholly consistent with that. It might very well be observed that the letter evinces a serious lack of insight on the part of the plaintiff into how bizarre, and indeed outrageous, her behaviour had become, and indeed, the tragedy of this situation is that far from gaining such insight with the benefit of time, for whatever reason, she has swung, after October 1998, from romantic interest to a distorted, hostile view of Mr. Mooney and the events involving him.
113. As of May 1997, the plaintiff’s later portrayal of Mr. Mooney, was of a man bent on treating her as a sexual object and, apparently, interested in, if not anxious for, a sexual relationship with her. Her evidence concerning her discussion with Mr. Mooney on the night when she came to the house was that he attempted physical contact with her. It is interesting to note how Mr. Mooney, on the uncontested evidence, reacted to the delivery to him of this letter. He did not make any response whatsoever and there was no contact whatsoever between the plaintiff and Mr. Mooney until September 1997. If, as the plaintiff alleges, Mr. Mooney wanted a sexual relationship with her, then one would have thought he would have undoubtedly have interpreted the letter as meaning that the plaintiff was available to him and would have taken advantage of that. In my view, the fact that Mr. Mooney did not respond in any way whatsoever to this letter belies the plaintiff’s evidence that Mr. Mooney was attempting to promote a sexual relationship with her, which she did not want, i.e. sexually harassing her.
114. The evidence of Ms. Michelle Brooks was also very helpful. She started as a temporary teacher in Tullamore College in September 1997. She became very friendly with the plaintiff and went to lunch almost every day with the plaintiff. Ms. Brooks said the plaintiff spoke about Jim Mooney quite often, and in a very positive way. She said the plaintiff was very interested in Mr. Mooney, “interested in what he was doing, where he was going, who he was socialising with, who his friends were, who his girlfriend was, all of that kind of thing”. She recalled an incident on 28th February, 1998, when she, Ms. Brooks, was attending an in-service course on inclusive education in UCD, and the plaintiff accompanied her to Dublin and went shopping while Ms. Brooks attended the course. When they met up afterwards, she said the plaintiff produced a shopping bag, and out of it took a tie and said, “I’m going to send this to Jim Mooney, I’m going to send it to him anonymously”. Asked why, by Ms. Brooks, she replied, “Because I just want to cheer him up, to make him smile”. Ms. Brooks suggested it might be better if she gave the tie to her husband and she agreed to do that.
115. Ms. Brooks said she felt that the plaintiff was very interested in Mr. Mooney and every aspect of his being and was physically attracted to him and spoke about him at length on numerous occasions. On one occasion, at lunch, Ms. Brooks said the plaintiff said to her, “I suppose I’d consider riding off into the sunset with Jim Mooney, but I couldn’t hurt Darragh”.
116. Ms. Brooks said it was absolutely untrue that she had not invited the plaintiff to her wedding because she was afraid to upset Mr. McEvoy because of her temporary position in the school. She said this was never discussed with the plaintiff, and at the time, there was no issue over her permanency because she had completed two years, and she had an expectation of being made permanent. She said she had not invited the plaintiff, as, having discussed matters with two other teachers who were getting married, she decided only to invite the Vice Principal, the Principal and the Chaplain, and she said that towards the end of 1998, the plaintiff’s behaviour changed and she did wish to cool the friendship a bit and put “a little bit of daylight between us”. She said that the plaintiff had never mentioned the words ‘harassed’ or ‘sexually harassed’. She said that the plaintiff had cut a photograph of Mr. Mooney from the newspaper. Mr. Mooney was dressed up as a nun for some kind of an event, and she said the plaintiff had this in her purse and showed it to her on one occasion.
117. Ms. Brooks said that the plaintiff’s very positive attitude to Jim Mooney changed around about September/October 1998, when she became quite negative about him and made negative, derogatory comments about him. Ms. Brooks recalled the social event in Spallins pub. She did not recall any discussion of popular psychology, but she did recall Mr. Mooney complimenting her upon her new hairstyle and recalled the plaintiff interrupting and Mr. Mooney responding sharply to the effect, “I wasn’t speaking to you”. Ms. Brooks recalled the plaintiff being very upset and consoling her in the Ladies toilet and that her upset was because of what Mr. Mooney had said or done. Ms. Brooks said it was around this time that the plaintiff began to become negative concerning Mr. Mooney. Ms. Brooks recalled the plaintiff being very upset because a post in the school, which she had hoped to get at this time, went to Mr. Mooney, and this really annoyed her. She said the plaintiff became scathing about Mr. Mooney and recalled her referring to him as a “rake”. She was also scathing about the school management at that time, as well. She said, however, that there was no suggestion or complaint from the plaintiff about sexual harassment; she never complained to Ms. Brooks at any time that she had been sexually harassed.
118. I am quite satisfied that Ms. Brooks was a truthful, reliable and independent witness, and I have no hesitation in relying upon her evidence. It is plainly obvious that her evidence is wholly inconsistent with the evidence of the plaintiff. It is important in that Ms. Brooks started in the school in September 1997. At that stage, according to the plaintiff, the process of sexual harassment had been underway since either late December 1996 or early 1997, and the incident at the end of May 1997 had already occurred, together with the letter written the following day. Ms. Brooks’ evidence fully supports Mr. Mooney’s account of events, insofar as the contacts between the plaintiff and Mr. Mooney were driven by an attraction on the part of the plaintiff for Mr. Mooney, rather than the other way around. Ms. Brooks’ evidence is also entirely consistent with the known events, namely, that in or about October 1998, the plaintiff thereafter evinced a hostile attitude to Mr. Mooney, commencing with the criminal damage to his car, and the allegations against Mr. Mooney uttered to Mr. McEvoy and Mr. O’Neill, when the plaintiff was confronted with the car damage incident.
119. All of this suggests to me that after the night in Spallins pub, when Mr. Mooney was, at the very least, sharp, if not rude, with the plaintiff in public, and subsequently, after the next social outing, privately rejected her, using very strong language for that purpose, it is probable that the plaintiff could not but realise and accept the reality of that rejection. Her reaction thereafter to Mr. Mooney was hostile and destructive.
120. In my view, the letters exchanged between Mr. Mooney’s solicitor and the plaintiff’s solicitor dated 10th December, 1998, and 15th December, 1998, are of considerable significance. As is obvious, Mr. Mooney alleges sexual harassment on the part of the plaintiff. The plaintiff’s reply, while denying that she sexually harassed Mr. Mooney, makes no allegation whatsoever of any sexual harassment or impropriety of any kind against Mr. Mooney. It would seem to me quite extraordinary if the plaintiff was of the view that she had been sexually harassed by Mr. Mooney that she would not have instructed her solicitor to make the complaints that she subsequently made in her formal letter of complaint of 25th January, 2001, and it is beyond doubt that if she had so instructed her solicitor, that her solicitor would have reflected those instructions in the response to the letter of 10th December, 1998. This omission inexorably indicates that as of that time, the plaintiff did not, in truth, consider that Mr. Mooney had sexually transgressed against her in any way.
121. In light of all of the foregoing, I do not accept the plaintiff’s evidence that there was any sexual harassment on Mr. Mooney’s part directed against the plaintiff. I am quite satisfied that the plaintiff’s evidence in this regard is not credible and I accept Mr. Mooney’s evidence that he did not, at any time, engage in any behaviours towards the plaintiff which had any kind of a sexual connotation or suggestion.
122. Although the plaintiff’s allegations against Mr. Mooney have been expressed, not just sexual harassment, but also bullying, it seems to me that her complaints are essentially of sexual harassment. She does complain of having her contributions at staff meetings in relation to the Transition Year belittled by Mr, Mooney, and also complains of rudeness on his part at a social event with other teachers. Even if I were to accept the plaintiff’s evidence in relation to these complaints, which I am unable to do, they would not, in my opinion, constitute an actionable wrong in respect of which she was entitled to recover damages from the defendants on the basis that they were vicariously liable.
123. The plaintiff also complains of bullying and harassment on the part of the school management, namely, Mr, McEvoy and Mr. O’Neill, and to a lesser extent, the Vice Principal, Mrs. Wilson. The plaintiff’s allegations in this respect appear to be to the effect that her complaints against Mr. Mooney of sexual harassment and bullying were not heeded and investigated by the school authorities under the available complaints or grievance procedures. The plaintiff also complained that after October 1999, she had a very poor relationship with Mr. McEvoy and that he treated her very badly or harassed her thereafter.
124. Mr. McEvoy, in his evidence, recalled an incident in December 1997. As he was patrolling the corridors, he noticed the plaintiff to be upset. He knocked on the door of her classroom and went in, called her to the back of the classroom and asked her was she okay, to which she replied that she was upset. He asked her was she okay to continue; then he asked her to come and see him when the class was finished, which she did. His evidence was that when she came to see him, she said she was upset because a member of staff was ignoring her and she wanted to be their friend. He said she repeatedly refused to name the person and indicated that if she wanted him to intervene, he would need to know who was involved, but she never named the individual. Mr. McEvoy said that the plaintiff never said anything about being bullied or sexually harassed or anything of that nature at this meeting; her only complaint was that she was being ignored. Mr. McEvoy said he named a particular teacher, but the plaintiff said it was not that person. Mr. McEvoy said that to console the plaintiff, he said to her that if somebody did not want to be friendly with her, it was their loss and he did not know why she would be concerned because she had a good husband and a young son to go home to. He said she was in quite good form when she left.
125. Mr. McEvoy, dealing in his evidence with the plaintiff’s complaint about not getting the Year Head role, having been acting in that capacity, said that two people, both the plaintiff and another teacher, had volunteered to take up the role with no guarantee of succeeding to the post. In the event, after interviews, neither of them succeeded to the post, which went to another teacher who was the holder of a B post, and when asked for an explanation by the plaintiff why she did not get the position, Mr. McEvoy denied, replying, simply, that he, Mr. McEvoy, was the Principal and he reassured her that other opportunities would arise and her chance would come. Mr. McEvoy said that he had no input, hand, act or part in these appointments.
126. Mr. McEvoy recalled the meeting on 2nd November, 1998, with the plaintiff, to deal with the damage to Mr. Mooney’s car. Also present was Mr. O’Neill, the CEO. He said Mr. O’Neill had come down to the school and informed him what had happened and asked Mr. McEvoy to get the plaintiff to come to the office, which Mr. McEvoy did. Mr. McEvoy was not present for the first few minutes of the meeting. When he got there, he said Mr. O’Neill outlined to the plaintiff the damage that had been done to the car, that the person who had done this had been seen, that the Registration Number of the car had been taken and as a result of garda enquiries, that the gardaí were in a position to identify the perpetrator. He said Mr. O’Neill asked the plaintiff did she know anything about it, and her reply was that she did not, but that she thought it was outrageous. Mr. McEvoy said that the plaintiff then said she had serious issues with Jim Mooney and she said she wanted to tell about an incident that had happened in Mr. Mooney’s house the previous summer. Mr. McEvoy said that Mr. O’Neill said that he would have to stop her there as he was happy to discuss anything that was within the remit of County Offaly VEC or that happened in the workplace, but he was not happy to discuss something that happened outside the workplace and was outside our area of responsibility, and he went on say he was happy to discuss any issues that she had in relation to the workplace. Mr. McEvoy said that the plaintiff then began to tell about the paycheck incident. Mr. McEvoy said that when she had finished telling him about this, he, Mr. McEvoy, pointed out to her that a similar incident happened the previous year when two other members of staff had inadvertently mixed up their paychecks to the extent that one of them actually had successfully lodged his colleague’s paycheck to his account. Mr. McEvoy said that he would put the incident to Mr. Mooney. Then Mr. O’Neill said he would like to see the plaintiff at 4.00pm if she had any other issues she would like to raise. Mr. McEvoy said that there were no other allegations made by the plaintiff at this meeting on 2nd November.
127. Mr. McEvoy said that on 5th November, as he was at his desk going through his post, the plaintiff came into his office with Tom Bracken. He said she wanted to report to him that Mr. Mooney had sought oral sex with her. Mr. McEvoy said he asked her where and when had this happened, and she replied, last summer, at his house on the Daingean Road. He said that the plaintiff left and Mr. Bracken remained behind and Mr. McEvoy asked Mr. Bracken had he been present on the occasion in question because he knew Mr. Bracken would sometimes go for a drink after work with Mr. Mooney and other members of staff. Mr. Bracken confirmed that he had been, but was asleep in the next room and had seen nothing. Mr. McEvoy said to Mr. Bracken that he thought that because it was outside the workplace that he, Mr. McEvoy, would not have a role to play, but that he would ring Mr. O’Neill and talk to him about it. He rang Mr. O’Neill and discussed it with him, straight away, that day.
128. It is commoncase that a further meeting took place on 9th November involving the plaintiff, Mr. O’Neill and Mr. McEvoy. At that meeting, Mr. McEvoy said the plaintiff admitted that she had damaged the car, and early in the meeting, she had said she had issues with Mr. Mooney. Mr. McEvoy said that Mr. O’Neill said he was happy to discuss anything that happened within the remit of responsibility of County Offaly VEC or in the workplace, but that he was not going to discuss matters which happened outside the workplace or which had nothing to do with County Offaly VEC. Mr. McEvoy’s evidence was that after this, the plaintiff said nothing. Mr. McEvoy then said that Mr. O’Neill indicated that he foresaw a situation where there would be tension between the plaintiff and Mr. Mooney if they were working together. He said that the plaintiff then said she could move school and he asked her was she suggesting a transfer, to which she replied, yes, that that would be wonderful. Mr. McEvoy said he handwrote the memo of the meeting. He then went through the memo and said it was the agreed memo of the meeting and that he read it back to the plaintiff and Mr. O’Neill. He said that the crossing out of the word ‘serious’ was agreed. He said he then handed the memo to the plaintiff to read, which she did, and when she read it, she spotted a grammatical mistake. He said the plaintiff read the two sheets which comprised the memo. Mr. McEvoy would not accept that the plaintiff was in a distraught or very disturbed state, and he said it was an amicable meeting and he was of the view that the plaintiff was quite relieved as nothing was going to happen in relation to the incident of criminal damage, it being a dismissible offence. He said that Mr. O’Neill, in an effort to ensure that the incident would not do long-term damage to the plaintiff’s career, because she was a good teacher, said that the letter would remain on file but would not be available to any committee or any group unless there was a repetition. He said that all signed the document as an agreed memo of the meeting when the plaintiff had read it. Mr. McEvoy denied that the plaintiff was tearful during the meeting. Mr. McEvoy denied that the plaintiff was asked to write a letter of apology to Mr. Mooney. He said that never happened. Mr. McEvoy’s evidence was that any question of the termination of the plaintiff’s contract of employment would have been a matter for the Department of Education and that that simply did not arise, that on the contrary, the incident was not to be made public and would not be made known to other bodies or other people. His evidence was that had it been disclosed further, it would have had serious consequences, if this incident had been made known to the committee and it would be very unlikely that the plaintiff would ever get promoted. His evidence was that although it remained on her personnel file, nobody would have access this. Mr. McEvoy denied any attitude or disposition on his part of siding with Mr. Mooney and of regarding the plaintiff as of no importance and no consequence. He said that the memo indicates that every effort was being made to draw a line under the incident and to move on without long-term repercussions for the plaintiff.
129. Mr. McEvoy said that after the meeting of 2nd November, he had spoken to Mr. Mooney about the plaintiff’s complaint about the paycheck incident in March 1997, and Mr. Mooney told him that the incident had happened, that the plaintiff had come to his classroom and looked for her paycheck, he had apologised and gave her her paycheck and then she handed him his paycheck.
130. Mr. McEvoy said that after the disclosure to him by the plaintiff on 5th November of her complaint concerning Mr. Mooney, he talked to Mr. Mooney about this and put the plaintiff’s allegation to him, which he denied. Later that day, he came back in the afternoon and he showed Mr. McEvoy a copy of the letter written by the plaintiff after the incident in Mr. Mooney’s house at the end of May 1997. Mr. McEvoy read that letter. Mr. McEvoy said that after the allegation made by the plaintiff on 5th November, Mr. Mooney told him he was going to go down the legal route to seek a retraction of the allegation.
131. Mr. McEvoy said that following this, he talked to Mr. Tom Bracken because he knew he was great conciliator on the staff and he knew he was friendly with both the plaintiff and Mr. Mooney. He said he was very conscious of the fact that the allegation that the plaintiff had made pertained to an incident which had happened outside the school. Mr. McEvoy said that he thought Mr. Bracken had spoken to the two parties but he did not report back to Mr. McEvoy. Mr. McEvoy emphatically denied any contact concerning this matter with Mr. Brian Hyland, a TUI representative. He said he never heard anything about it and he had no contact with Mr. Hyland and Mr. Hyland never contacted him.
132. Mr. McEvoy said that the meeting of 9th November and the handwritten memo was the end of the matter so far as the car damage was concerned, as far as both he himself was concerned and as far as the CEO was concerned. He said that the memo of that meeting and the plaintiff’s written apology were put in a sealed envelope and he said even the people in the HR Department in the VEC would not have been aware of it. He emphatically denied that there was any question of a threat of prosecution being made against the plaintiff. He said everything was done to keep the matter as quiet as possible for the plaintiff’s sake, and no member of staff would have known about it, apart from the plaintiff and Mr. Mooney, the Vice Principal, Mrs. Wilson, and Mr. Bracken and Mr. McEvoy. He said he was not aware whether the plaintiff had told her friend, Michelle Brooks, about it or not. Mr. McEvoy also emphatically denied that there was any threat of a transfer of the plaintiff. He said it came up in discussions on 9th November concerning the possibility of a transfer and the plaintiff subsequently wrote requesting a transfer, and then subsequently wrote withdrawing the request and nothing happened.
133. Mr. McEvoy denied that in November 1998, he was aware that there was a significant bullying and harassment situation between the plaintiff and Mr. Mooney and he denied that he was told of this by the plaintiff. He said an incident that happens in a private house at night, outside of working hours, is not within the remit of the responsibility of he, as a Principal, nor the CEO. He said he was not aware that there was a problem. Mr. McEvoy said that it was his view that the plaintiff’s allegation concerning the incident at the end of May 1998 had nothing to do with the school. He said he was not made aware of anything other than the incident on the Daingean Road. He said that notwithstanding being given the opportunity to raise other matters related to the workplace or within the remit of County Offaly VEC, the only other allegation made by the plaintiff concerned the paycheck in March 1997. Mr. McEvoy’s evidence was that the plaintiff did not say that, in her view, the taking of the paycheck was a form of sexual harassment or bullying directed by Mr. Mooney against her.
134. Apropos the meeting on 2nd November, 1998, and the reference in the memo of that meeting to “cheques and other issues”, Mr. McEvoy said Mr. O’Neill asked her what were the other issues and the plaintiff proceeded to say she wanted talk about an incident that happened in Jim Mooney’s house the previous summer, to which Mr. O’Neill said, “I’ll have to stop you there”. Mr. McEvoy said that this happened also at the meeting on 9th November. Mr. McEvoy said that the first he ever heard of the other allegations of sexual impropriety alleged by the plaintiff against Mr. Mooney was in her letter of complaint of 25th January, 2001.
135. Mr. McEvoy said that in the meeting between himself, Mr. Mooney and Mr. O’Neill on 2nd November, 1998, he says that Mr. Mooney had no idea who had done the damage to his car and presumed it might have been teenagers. He said when it was suggested to him that it might have been a member of staff and when he was invited to guess who it might have been, Mr. Mooney said the only person he could think of was the plaintiff because she had been harassing him at his house.
136. In the meeting of 9th November, 1998, when the plaintiff had admitted the damage to Mr. Mooney’s car, Mr. McEvoy said that it was presumed that her reason for doing this was related to something that had happened in the house on the Daingean Road because they had no evidence or information from the plaintiff otherwise. He said the only thing that she could come up with, when asked, was the paycheck incident which had happened eighteen months earlier. Mr. McEvoy said he was sure that the plaintiff was not asked to write a letter requesting a transfer from Tullamore College. He said that did not happen and she volunteered her request for a transfer. Mr. McEvoy said that he thought there was a personal problem of some nature between the plaintiff and Mr. Mooney which did not pertain to the workplace. He said the plaintiff never made any allegations whatsoever in relation to the three items later complained of by the plaintiff until her letter of 26th January, 2001, and he said that if she had made these complaints earlier, they would have been dealt with.
137. Mr. McEvoy said he had no involvement whatsoever, nor did the CEO, in the retraction note signed by the plaintiff on 13th January, 1999, of the allegation made on 5th November, 1998. He said he presumed Mr. Mooney wanted that retraction. He said it was utterly untrue that the reason the plaintiff was required to sign that retraction was that if she did not, she was going to be prosecuted by Mr. Mooney and she was going to be transferred. Mr. McEvoy said that the written retraction was on the VEC file because the plaintiff had arrived in to him on 13th January, and handed in the retraction note. He said he gave a copy of the retraction note to Mr. Mooney and sent a copy to the VEC. He said the plaintiff had not been required by him or by Mr. O’Neill at any stage to write a letter of retraction. Mr. McEvoy said he was surprised when the plaintiff came in on 13th January, out of the blue, to give him the retraction note.
138. Mr. McEvoy denied that when the plaintiff reported the Daingean Road incident to him on 5th November, 1998, that she made any wider report of sexual harassment and bullying. He also denied saying that he could not deal with the matter in the absence of Mr. Mooney.
139. Mr. McEvoy described the plaintiff as a very good teacher whose attendance was very good, was always punctual to class, well prepared and her students liked her; who kept very good discipline, was very fair and that he was stunned when he learned of the incident of the car damage, and hoped that with the efforts made at the time, a line would be drawn under it and everybody would move on.
140. Mr. McEvoy said that the meeting which the plaintiff said took place in October 1999, arranged by Mrs. Wilson, never took place. He said there was never any need for anyone to arrange a meeting with him because his door was open at all time to people and nobody ever had to arrange an appointment with him through anybody else. He said that Mrs. Wilson never had to organise a meeting for a member of staff with him. Mr. McEvoy denied emphatically ever saying that anyone was a ten-out-ten. He said Mr. Mooney was an excellent teacher and nobody has ever matched him for results in school from the point of view of achieving A1’s. He agreed that the school was blessed to have two such good teachers. He said the conversation concerning ten-out-of-ten never happened. Mr. McEvoy said that he could not recall the plaintiff putting to him that he put Mr. Mooney up to writing the solicitor’s letter of 10th December, 1998, and he said he would not have done that. He said he would not have encouraged any member of staff to engage in legal proceedings against a colleague. He said that conversation never took place at the meeting alleged by the plaintiff or at any time. However, Mr. McEvoy said that he did not accept that the relationship between himself and the plaintiff was very poor after October 1999. Mr. McEvoy accepted that he did come into the plaintiff’s class, as he did to other teachers as well, generally at the end of term, to encourage the pursuit of educational activities rather than frivolous games which he regarded as a waste of time. He said that even though attendance on these days would be small, generally, those who were there, were highly motivated and likely to achieve good results and it was his policy to encourage educational activity which might enhance results, rather than activities which were frivolous and a waste of time. He said that the plaintiff was in no way singled out in this respect.
141. He said he did not notice any change in his relationship with the plaintiff during the year 2000, and he said he regularly, when he encountered students in the corridor, he would send them back to their class, that he had told staff not to send students on errands from class. He said at the start of the school year, he reminded staff to prepare for class and make sure they had all the resources necessary and not to have downtime in class where they would have to send students for resources or be tempted themselves to leave the class.
142. Mr. McEvoy, apropos the plaintiff’s evidence concerning not being invited to Michelle Brooks’ wedding, said he had no hand, act or part in trying to influence anybody’s wedding arrangements and he rejected the idea that Michelle Brooks’ job was under threat in the school. He said that was not true. He said that where a teacher was on a temporary whole time contract, if there was any difficulty, the contract would not be renewed after the first year. However, he said Michelle Brooks’ contract was renewed twice, and the only thing that held up her being made permanent was awaiting sanction from the Department of Education and as soon as that sanction was received, she was made permanent.
143. Mr. McEvoy learnt of the incident that occurred on 5th December, 2000, a week following that incident, that is, on 12th December. He said that on 6th December, the plaintiff came in to him and said she was thinking of looking for a transfer but made no mention of the incident. He learnt of the incident when he received a formal complaint from Mr. Mooney concerning the incident. He spoke to Father Gerry because he had been present. Father Gerry told him that he had witnessed an incident of verbal abuse in the staffroom and wrote a short letter concerning it. He said the following day, Mr. Mooney came back to him and asked him to hold off sending his complaint to the VEC until he sought legal advice. Mr. McEvoy said he held off on it then, but he did inform the CEO by telephone. He said, having been asked to hold off on it by Mr. Mooney, he did not, as he intended to do, put the matter to the plaintiff. He said Mr. Mooney came back to him and on 8th January and he sent the complaint to the CEO. Mr. McEvoy said that the plaintiff went sick from 8th January, which was the first day back at school, until 22nd January, 2001.
144. In relation to the plaintiff’s complaint of Mr. McEvoy favouring Mr. Mooney, as instanced by praising him at staff meetings, Mr. McEvoy said that after Assistant Principal meetings on Monday at which relevant matters were discussed, always on Tuesday morning at break time, he would go into the staffroom and he would read out what became known as ‘The Tuesday Memo’ which would deal with relevant school matters. After this, the memo would be put into each teacher’s pigeonhole. He said, always, at the end of the memo, he would praise a member of staff for an achievement, for example, training a successful football team or debating team. He emphatically denied that Mr. Mooney was singled out for praise.
145. Mr. McEvoy said that the plaintiff’s formal written complaint of 25th January, 2001, was handed to him by the plaintiff. He said he went into his office and read it, and in view of what it contained, he looked for his copy of the Code of Practice for dealing with issues of sexual harassment in the workplace which had been adopted the previous November, but he could not find his copy which he had left at home, so he went into the staffroom and took the copy off the notice board. He said he called the plaintiff back into his office at the break of class and handed her the copy of the Code of Practice and reminded her of the two people who had been designated, because staff had been made aware prior to Christmas of who the two people were, namely, Tom O’Donoghue and Colette Lee. He said that the plaintiff indicated that she had made contact with Colette Lee.
146. Mr. McEvoy said he was present at two meetings on 26th January, 2001. At the second one, at which the plaintiff and her husband were present, her transfer request, which had been made in writing, was dealt with. Mr. McEvoy said that the memo of the meeting prepared by Mr. O’Neill was an accurate account of what had transpired at the meeting. He said that Mr. O’Neill indicated that the only place that he could find a suitable vacancy was Edenderry because they had been unable to recruit a suitable Irish teacher in the school. He said the intention was that Mr. Doolan, a teacher in Edenderry, who was a History teacher and also an Irish teacher, would have his History classes taken off him and given to the plaintiff. He said the same would happen with another teacher, who was a teacher of English. He said when all this was put to the plaintiff and her husband, they agreed to it, even though the plaintiff made it clear that it was not her first choice. Mr. McEvoy said that Mr. O’Neill then sought and received a guarantee from the plaintiff that the accusations and written allegations would stop immediately. He said that what was wanted there was a ceasefire so that the legal correspondence and allegations would halt to enable a proper resolution to be reached to the satisfaction of all. In response to the plaintiff’s query, he said Mr. O’Neill said he would seek the same guarantees and promises from Mr. Mooney as he was seeking from her.
147. Mr. McEvoy said that after the plaintiff went to Edenderry, on the Tuesday of that week, she came, by arrangement, to Tullamore College to collect notes connected with her teaching schemes. Mr. McEvoy said he met her in the school in the parents’ room and he gave her the notes. He noticed that still had her master key to Tullamore College and he asked her for this as she was no longer a teacher in the school. Mr. McEvoy said that the plaintiff told him she was very happy in Edenderry.
148. Mr. McEvoy vehemently denied that he was in any way behind the plaintiff’s arrest in connection with the fire in Tullamore College. Mr. McEvoy accepted that in the investigation into the fire by the gardaí, he had told the gardaí that he suspected that the plaintiff might have been involved and that she may have made anonymous phone calls to him, and that when he said down the phone to the anonymous caller, “Mary, is that you?”, the phone calls stopped. These calls had been made between January and May 2001 onto his direct line into his office, which was an ex-directory number which very few people would have had. He said there were maybe five calls. On the sixth call, he said, “Mary, is that you?”, after which he said he heard a sharp intake of breath, the phone hung up and he never got another call.
149. Mr. McEvoy denied that the plaintiff’s formal complaint was being swept under the carpet by the device of transferring the plaintiff to Edenderry. He said, firstly, Mr. Mooney would not have tolerated the allegations being left hanging over him and, secondly, he, Mr. McEvoy, as Principal, would not have liked the implication that he had not listened to the plaintiff’s complaints, as he took pride in his work, so he would not have let the thing rest.
150. Mrs. Helen Wilson, who was the Deputy Principal in Tullamore College from 1996 to 2005, said in her evidence that she first heard about sexual harassment allegations in 2001, after the plaintiff had sent a letter to the VEC, that is, the letter of complaint of 26th January, 2001. She said that she had no meetings with the plaintiff on any occasion in connection with a sexual harassment allegation and she said the plaintiff never came to her on any occasion in relation to these allegations. She recalled an incident which she thought was towards the end of September 1998, when a student came to her and told her that the plaintiff was upset in the classroom at lunchtime. She went to the classroom and spoke to the plaintiff and asked her what was wrong and her evidence was that the plaintiff told her she was upset because she had not got a post of responsibility. Mrs. Wilson said she was surprised at this, as there had been a reasonable length of time since the results of the competition were announced. Her evidence was that the plaintiff said to her that she had nothing against any of the people who got posts and she named them, including Mr. Mooney, that she had nothing against him, that they were friends, but that it was very hard to get him to talk. Mrs. Wilson said she encouraged the plaintiff to get involved in extracurricular activity and suggested coaching for debating and public speaking. She said that some time later, the plaintiff came back to her and indicated that she was not interested in this because her husband was doing it in Kilcormack. She felt there would be a conflict of interest. At that stage, Mrs. Wilson said she suggested to her editing a newsletter for the school. She said this discussion happened in 1998, soon after her previous discussion, where she had found her upset. Mrs. Wilson said that the plaintiff did say she would be interested in that, but Mrs. Wilson felt she was not really interested and she said the plaintiff reminded her that she was interested, particularly in being a Year Head. Mrs. Wilson said that at that point, she and the plaintiff had a good relationship and she regarded the plaintiff as a good teacher and she believes she would have been a good Year Head.
151. Mrs. Wilson said she saw absolutely nothing, concerning the allegations made by the plaintiff, of Mr. Mooney touching or rubbing the plaintiff in the staffroom, nor of Mr. Mooney offering the plaintiff a lift with a salacious suggestion. She recalled a discussion in the staffroom one day when the plaintiff was telling the people there about her purchase of a car, saying she had been shopping on a Saturday afternoon and had bought a car and that her husband had not known about it, and when she went home and told him, his reaction was “I admire your choice”.
152. Mrs. Wilson denied having any involvement in arranging a meeting between the plaintiff and Mr. McEvoy. She said that during her entire career in the school with Mr. McEvoy, she had never arranged a meeting with him for anybody. She said that Mr. McEvoy’s door was always open, as was her own, and teachers could come at any time to talk to them or make arrangements to see either one or other of them.
153. Mrs. Wilson denied the plaintiff’s evidence that she visited her in her office on 6th November, 1998. She said the meeting never took place. She said the first she had heard of the car damage incident and the plaintiff’s involvement with it was after the garda investigation and she did not believe that the plaintiff would have been involved in doing that.
154. Mrs. Wilson said that in September 1999, she asked the plaintiff if she would be interested in continuing to do the newsletter. She said she had done it in 1998. She said she presumed that she was going to do it because she said people tended to continue doing work that they enjoyed doing. Her memory was that the plaintiff did the newsletter at the end of term, which would have been Christmas 1998, and again for the Easter term of 1999 and summertime. Her evidence was that the plaintiff continued doing it until the time that she said she would no longer do it, which was in 1999. Mrs. Wilson said that what the plaintiff said in evidence concerning this meeting in September 1999, to the effect that she was very aggrieved with the way she was being treated by the CEO, Mr. O’Neill and Mr. McEvoy over the car incident, and that it was general knowledge that she had been threatened with a transfer was all incorrect. Mrs. Wilson said she asked her was she going to do the newsletter again, and she said the plaintiff replied that she was not. Mrs. Wilson said she did not pursue it because it was voluntary work and that, in the first instance, she felt she was not particularly interested in it.
155. Mrs. Wilson said that at no time did the plaintiff ever come to her to complain about Mr. Mooney. She said she was absolutely sure of that and she said if she had, she would have taken up her problem and would have dealt with it in an appropriate manner, that she had a good relationship with the plaintiff and there was no reason ever for her not to handle any difficulty that she had.
156. Mr. Diarmuid O’Neill, in his evidence, said that he had started teaching in 1969, was the Principal in Tullamore College for thirteen years and became the CEO of Offaly Vocational Educational Committee in 1995.
157. He said he first became aware of difficulty between the plaintiff and Mr. Mooney when the gardaí in Tullamore approached him regarding damage to a car in the car park in Tullamore College. They informed him they had a suspect in that case, told him the name of the suspect and that they had evidence that the person suspected was seen in the car park doing the damage and seen leaving the car park by two independent witnesses. Mr. O’Neill said he had been playing football in the gymnasium on the night in question, as he had done for the previous three years every Monday night during wintertime from 7.00pm to 8.00pm. As he left after the game, the caretaker drew to his attention the damage to Mr. Mooney’s car. He said, having consulted with the gardaí, he sought a meeting with the plaintiff, as the suspected person, which was to take place in the office of Mr. McEvoy in the school. He said at that meeting, he spoke to the plaintiff in Mr. McEvoy’s presence. He went down through the facts that the incident had been witnessed but did not inform her that she was suspected as the culprit. He then asked her did she know anything about the incident, and his evidence was that she replied that she knew nothing about the incident and she condemned the incident as outrageous. Mr. O’Neill said at that stage, the plaintiff said she had problems with Mr. Mooney. He asked her what those problems were, to which she replied that they related to an event on the Daingean Road in Tullamore. She commenced to tell him about this event, but as soon as he gathered that it was in the early hours of the morning in a private house and between adults, he got a very quick sense that he should not be hearing about it and that it was inappropriate to listen any further and that it was outside his area of responsibility, so he asked her to stop. Mr. O’Neill said he told her that he would listen to and act on any concerns she had that were related to her workplace, and following on that, he said the plaintiff told him about the paycheck incident. He said that the “other issues” referred to in the memo of the meeting which he prepared, referred to the event on the Daingean Road and the plaintiff’s annoyance about what happened there. Mr. O’Neill said that he again stated that he would deal with any work related concerns that the plaintiff had, and he gave her an opportunity to tell him if she had any other matter that she wanted to discuss. He said there was nothing else said, and then he said to her that if she wanted to come back to him regarding the damage to the car, he would like her to come back at 4.00pm that day.
158. Mr. O’Neill said he also had a meeting on the same day, 2nd November, 1998, with Mr. Mooney at 10.30am, shortly after the meeting with the plaintiff. At that meeting, he said he discussed with Mr. Mooney the information given to him by the gardaí. He said Mr. Mooney did guess the name of the teacher alleged to have done the damage to his car. He said that Mr. Mooney informed him that the plaintiff had been annoying him over a period of time and he said that he had reported the matter to the gardaí. He also said that Mr. Mooney told him about a letter that had been sent to him by the plaintiff. He did not furnish a copy of the letter to him, but Mr. O’Neill got the clear impression that the letter expressed matters of an intimate nature and he did not pursue that. Because the allegation that the plaintiff had damaged Mr. Mooney’s car had not been established or proven, he requested Mr. Mooney not to discuss the matter outside of his interview with him. Mr. O’Neill said he came to no conclusion at that stage; that he felt he was merely going through a process.
159. Mr. O’Neill gave evidence next of his involvement in the meeting on 9th November, 1998. He said the purpose of the meeting was to speak again to the plaintiff regarding the criminal damage to Mr. Mooney’s car. He said early in the meeting, the plaintiff informed him that she had carried out the damage to Mr. Mooney’s car in the car park in Tullamore. He said that she acknowledged that what she had done was wrong. He said he felt that this was a very serious matter for two reasons. First, its criminal nature, which, in the educational sector, for somebody in the plaintiff’s position, could lead to dismissal from her post, and, secondly, because she had lied to him in regard to this incident in the meeting on 2nd November, 1998. Mr. O’Neill said that the prospect of dismissal under the relevant statutory procedure was very much uppermost in his mind at the time. Mr. O’Neill said that before and during this meeting, he was considering his own options because his concern was that he had a teacher in front of him, and if he proceeded down the possible dismissal route, it was inevitable that her job would be at stake, her future career would be at stake and as she was a young, married teacher and a good teacher who had a family, it weighed very heavily on him what he should do and he had given some thought to it prior to the particular meeting, if, in fact, it turned out she was the person.
160. He went on at the meeting to say to the plaintiff that he foresaw difficulties for both members of the staff continuing to work together in Tullamore College, to which she replied that she could go to another school. He said that when asked for clarification, the plaintiff confirmed that she was seeking to go to another school, that that would be wonderful. Mr. O’Neill said that if she wanted a transfer that she must write a letter to the County Offaly VEC seeking a transfer. Mr. O’Neill said he was very anxious to get the plaintiff to write a letter of apology to County Offaly VEC for the incident and to include a guarantee that it would not happen again, because he felt that if the plaintiff was not willing to do this, he would have a bigger difficulty, but he said the plaintiff readily agreed to do this. Mr. O’Neill said that as he had his mind made up not to proceed down the discipline route and the dismissal route as he wanted as few people as possible to know what he was doing about the incident, to protect the plaintiff and her reputation in the school and he told her that her file would not be made available to anybody else and the information concerning the incident would be put into an envelope and kept in her personal file, but in his office where it was not available to anybody in the HR Department or anybody else. He said he kept it in a locked file in his office and that was not the first time that that had happened. Mr. O’Neill added that in deciding not to go down the route of dismissal and keep the file in the privacy of his own office, he was making a judgment call which left him at some risk if there was a repetition of an incident of that seriousness. He said he could be vulnerable if it became known that he had already handled it in the way he did. He said he was anxious to ensure, on the one hand, that the plaintiff’s reputation and career was safeguarded, but he was also concerned about his own position and his own career, but in doing what he did, he said he left himself somewhat vulnerable.
161. In reference to the phrase “series of” in paragraph 7 of the memo of that meeting and the pencilling out of the word ‘serious’, Mr. O’Neill said that the plaintiff referred again to the events on the Daingean Road and to the issues that she had around that event and that she said that it was this event and what happened there that provoked to act in the way she did, which prompted Mr. O’Neill to remind the plaintiff, as he had done before, that these matters were outside the responsibility of County Offaly VEC. He said that he made it clear that any issues of concern that she had that were work related, he was happy to deal with and follow through on. Mr. O’Neill was adamant that the plaintiff only mentioned the Daingean Road incident and no other incidents of alleged sexual harassment. Mr. O’Neill said that he listened intently to every single thing that the plaintiff said to him that day because he said a lot depended on what the plaintiff’s said that day. Mr. O’Toole emphatically denied wanting to get rid of the plaintiff and said that if he had been so disposed, he had the ammunition to do so in the committing of criminal damage by her and the fact that she lied about it to him initially. He said that on the contrary, he wanted to protect her position. He said he had experience of the plaintiff when he was Principal in Tullamore College from 1993 to 1995, and he regarded her as a very good teacher who did her job well and he had every reason to look after her and her career and he had no intention of doing anything that would damage that.
162. Mr. O’Neill said that no member of the Teachers Union of Ireland and, in particular, Mr. Hyland, ever spoke to him about the plaintiff in the period from 1998 onwards about any matter. He also said that Mr. Bracken never spoke to him about the plaintiff, this incident or any other matter. Mr. O’Neill said that the inclusion of the line in the memo concerning the plaintiff’s access to her file at all times was put in by him to reassure the plaintiff that she would know exactly what was going to be on her file regarding this incident. He said the plaintiff was given the memo, which she read over and corrected, adding in the word ‘did’ on the third line of the second page before she signed it.
163. Mr. O’Neill said that the meeting was a difficult one for the plaintiff, that he did not remember any emotion at the meeting, but that he would have given the plaintiff, like anybody who came to his office for something as difficult as this, time to compose themselves before they left the office. He said he did not remember the plaintiff crying at the meeting.
164. Mr. O’Neill said that when he received the plaintiff’s letter dated 20th December, 1998, in which she withdrew her request for a transfer, he was surprised and somewhat disappointed because he said that work had been done in trying to arrange a transfer. He said he also found it difficult to understand her withdrawal of her request.
165. Mr. O’Neill said he had no part to play in the retraction by the plaintiff of the allegation she made on 5th November, 1998, and was not aware of it at the time.
166. Mr. O’Neill next encountered the plaintiff on 13th December, 2000, she having verbally requested a transfer from Mr. McEvoy on 6th December, 2000, the day after the incident in the staffroom, and Mr. McEvoy had recommended to the plaintiff that she approach Mr. O’Neill’s office about that request. That led to the plaintiff meeting with Mr. O’Neill on 13th December, 2000. Present at that meeting were the plaintiff, Mr. O’Neill and Marie Bracken, the Assistant Principal Officer in County Offaly VEC, who was Head of Administration in the County.
167. Mr. O’Neill said that the plaintiff requested a transfer to another school. Mr. O’Neill said four schools were mentioned, namely, Banagher, Clara, Ferbane and Kilcormack. Mr. O’Neill asked her why did she want to leave the school, and she replied that she felt she had much more to offer in another school and she said she was not happy in the school she was in. Mr. O’Neill said he asked her was there anything he could help with regarding her work in Tullamore College or was there any complaint of anything wrong. He said she made no comment on this, just that she wanted to change to another school. Mr. O’Neill said that the plaintiff stated clearly her preference to go to either Banagher, Clara, Ferbane or Kilcormack. She did not mention Edenderry and he said that it was obviously not one of her preferred choices. He acknowledged that if it was possible to accommodate her in one of her preferred schools that would be done. Mr. O’Neill denied that the transfer to Edenderry was vindictive. He said that after the meeting, he asked the HR Department to seek a place for the plaintiff in one of the schools preferred by her. He said, as it turned out, there was only one school in the county that had a vacancy; all other schools had their full quota of teachers. The only school with a vacancy was Edenderry. He said a vacancy had arisen in Edenderry because early in the first term, the period of September to December, a teacher had left the school, namely, an Irish teacher. He said two sets of interviews took place to fill the vacancy, but no suitable candidate was found, therefore, the Principal was anxious to get somebody on a temporary basis to fill the vacancy until such time as the timetable could be readjusted.
168. At a meeting with the plaintiff on the morning of 26th January, 2001, Mr. O’Neill put the proposal to transfer to transfer her to Edenderry to her, knowing that it was not her preferred choice. That meeting took place in Mr. O’Neill’s office. Mr. McEvoy was also present.
169. At the start of this meeting, the plaintiff’s letter of complaint dated 25th January, 2001, mentioning bullying and harassment was discussed. It was the first item on the agenda and referred to in the memo where there is a reference to “to find a resolution to the difficulties”. Mr. O’Neill said that the difficulties there mentioned were the accusations of bullying and harassment. Mr. O’Neill said he told the plaintiff that he hoped to continue on a process following what Mr. McEvoy had done that morning, having given her a copy of the Code of Practice for dealing with bullying and harassment in the workplace. Mr. O’Neill said he reminded the plaintiff that she had requested a transfer from Tullamore College to any one of four schools, and that in the light of her difficulty, he had a proposal she could avail of if she wished. He then told her of the vacancy that occurred in Edenderry, that he was acutely aware that this was not one of her choices, but that it was the only school where there was a vacancy. Mr. O’Neill said that he told her that if she went there it would only be until summer, until such time as an opportunity would arise to change her to one of the schools of her choice, as subsequently happened.
170. Mr. O’Neill said he was anxious at that stage to deal with the allegations before him in terms of the plaintiff’s letter and he wanted to ring fence those allegations and deal with them. In this respect, he requested that all aspects of the dispute between the two parties would need to end, and that he said that he intended to play a key role in coming to a satisfactory conclusion in all of that. He said he sought and received guarantees from the plaintiff that written allegations and accusations would stop to enable them to deal with the accusations that they had in front of them in a calm atmosphere. He said that the plaintiff agreed with his request and understood what he meant.
171. Mr. O’Neill said that as of 30th November, 2000, he knew a grievance procedure was in force and that replaced one which had been operated under the auspices of the Teachers Union of Ireland, nationally before that.
172. Mr. O’Neill said that on 26th January, 2001, the plaintiff, for the first time, indicated to him that there was a difficulty regarding bullying and sexual harassment in the workplace. He said, having read her letter and having spoken to Mr. McEvoy in the morning, felt that the appropriate way to deal with it was to follow the Code of Practice but he did not rule out the possibility that meetings would take place with the plaintiff and others in the days or weeks to come. Mr. O’Neill said that his position was that the plaintiff had been given a copy of the Code and it was a matter for the plaintiff whether or not to implement stage one or to start at stage two of the procedure. He said the ball was in her court. He said that the plaintiff apparently decided to start at stage one and had made contact with one of the two designated people, namely, Colette Lee. He said at that stage he was of the view that the Code had been embarked upon and that it was going to take its course.
173. Mr. O’Neill said that the plaintiff was out on a sick certificate from 8th January until 22nd January.
174. Mr. O’Neill said that he hoped that the transfer would contribute to calm by eliminating any opportunity for further controversy, the parties being separated by approximately twenty miles. He said that in that respect, the transfer was successful. There were no other allegations of any kind from that point on. He said that his intention was that this would allow the process to continue unimpeded or uninterrupted. He said he had a concern that as this was a new process and might not be enough to lead to a resolution, he felt he would need to meet the plaintiff to see that she was happy with the progress with the Code and he told her on 26th January that he would be writing to her to meet her to discuss how the Code was being worked, if it was being worked successfully, or if there was anything he could do to help that. He also wanted to meet her with regard to the change of schools to monitor how that was going.
175. Mr. O’Neill said that through the Principal of the college in Edenderry, he arranged to meet the plaintiff on the Friday, a week after the meeting on 26th January, 2001. Mr. O’Neill received a letter dated 2nd February, 2001, from the plaintiff, saying:
“Dear Mr. O’Neill,
I refer to your request for a meeting today at 4.00pm. I enclose herewith a Doctor’s Certificate and, as you can see, I am unwell and unable to attend today. I must return to my GP on Monday for a further check-up. After this, I can make myself and my solicitor available for a meeting at a mutually acceptable time.
Yours sincerely,
Mary O’Toole”
176. A Medical Certificate dated 1st February, 2001, was presented, saying that the plaintiff was suffering from Gastritis and unable to attend school/work.
177. The plaintiff was out of work until the following May, and Mr. O’Neill did not have any further meeting with her.
178. Mr. O’Neill said he had a meeting with Mr. Mooney to discuss the plaintiff’s letter of complaint of 25th January, 2001, and at that meeting, he went through the letter with Mr. Mooney and asked him for his response. This meeting took place on 26th January, 2001, just prior to the meeting Mr. O’Neill had with the plaintiff on that date. Mr. O’Neill said he had explained to Mr. Mooney the seriousness of the allegations and the implications of the allegations made and he discussed how these would have to be dealt with. He said Mr. Mooney was cooperative with the process. He said Mr. Mooney did not want any face-to-face meetings with the plaintiff while the accusations were being dealt with. Mr. O’Neill said that Mr. Mooney wrote to him by way of a letter of 29th March, 2001, which was Mr. Mooney’s formal response to the allegations which were contained in the complaint of 26th January. Mr. O’Neill said he had no further contact with Mr. Mooney thereafter concerning the plaintiff’s complaints, and became aware that Mr. Mooney had issued legal proceedings against the plaintiff.
179. Mr. O’Neill said that after the plaintiff agreed to the transfer to Edenderry, County Offaly VEC set about seeking a transfer to a school of the plaintiff’s choice. He said that as a result of discussions he had with the Principals of the schools in the County Offaly VEC, he succeeded in finding an appropriate placement for the plaintiff in Ferbane Vocational School, and the plaintiff was informed of this in May 2001, and she took up duty there on 1st September, 2001.
180. Mr. O’Neill accepted that he did not tell the plaintiff that she could or should have a representative with her at the meetings of 2nd or 9th November, 1998. He said these meetings were not accusatory meetings and said if the plaintiff had requested the presence of either a union representative or friend, he would certainly have agreed to same. He agreed that he did not bring the relevant Code of Practice of 1994 to the attention of the plaintiff then, because he did not think it was appropriate.
181. Mr. O’Neill said that in his meeting with Mr. Mooney on the morning of 2nd November, 1998, he did not raise with Mr. Mooney the matter which had been alluded to by the plaintiff in his earlier meeting with her, as he would have regarded anything that happened in a private house in the early hours of the morning as not his concern and would not have gone down the route of discussing it with Mr. Mooney. He said just as the plaintiff had volunteered certain information to him and he stopped her doing that, Mr. Mooney also volunteered some information as well. He said that when Mr. Mooney mentioned the letter written by the plaintiff, Mr. O’Neill did not enquire as to the contents and Mr. Mooney did not tell him the contents of that letter, and he felt that it was outside his area of responsibility.
182. Mr. O’Neill said that the conversation on the telephone that the plaintiff, in her evidence, said happened when she went to work in Edenderry, and in which conversation she said that Mr. O’Neill had ordered her to go back to work and told her he would not discuss anything with her unless she returned to Edenderry immediately, did not happen. Mr. O’Neill also denied ringing the plaintiff’s husband in Kilcormack School to arrange a meeting at 4.00pm on Friday 2nd February.
183. Mr. O’Neill said that after the plaintiff went on sick leave, he wondered whether he could contact her while she was out on sick leave and he took legal advice on this and was advised not to make contact with her until she returned from her sick leave.
184. Before embarking upon a consideration of the evidence relating to the manner in which the defendants dealt with the plaintiff’s complaints, I should first comment upon the defendants’ submission to the effect that if the court finds that the plaintiff was not sexually harassed or bullied or otherwise ill-treated by Mr. Mooney, no case could arise against the defendants in respect of any alleged deficiencies in the investigative procedures pursued by the defendants in relation to the plaintiff’s allegations.
185. Notwithstanding the fact that I have rejected the plaintiff’s evidence in relation to her complaints and found that she was not sexually harassed or bullied by Mr. Mooney, she was, nonetheless, entitled, as indeed would any employee of the defendants, to make such complaints and to have them properly dealt with under the appropriate current procedures, by the defendants, as employers. If it could be said that the evidence identified damage or injury to the plaintiff caused by any actionable failure by the defendants in this respect, notwithstanding the lack of merit in the plaintiff’s complaints, damages could arise. It is, of course, fair to say that there is a theoretical element to this conclusion, given that it would be highly unlikely and that a plaintiff could establish or that a court could identify separate injury or damage resulting from a procedural deficiency, in circumstances where the underlying complaint was without foundation.
186. Nevertheless, I must proceed to consider the plaintiff’s complaints against the defendants in respect of their handling of her complaint.
187. Critical to the determination of this issue is the evidence of the plaintiff as to what she told the defendants at various times. In this respect, as in the earlier aspects of the case, I regret to have to say that I have little or no confidence in the veracity of the plaintiff’s evidence, and up until 2nd November, 1998, I am quite satisfied that the plaintiff made absolutely no complaint of any kind whatsoever concerning Mr. Mooney to the defendants. I accept Mr. McEvoy’s evidence as to the content of the conversation between himself and the plaintiff when he found her upset in her classroom and, indeed, what she had to say about being ignored is consistent with the fact of rejection by Mr. Mooney of her advances. When Mrs. Wilson spoke to her in or about September or October, 1998, after she was unsuccessful in her application for promotion, her only complaint, at that stage, about Mr. Mooney, who had been successful in the competition was that he was difficult to talk to. I accept Mrs. Wilson’s evidence as to this conversation and there appears to me to be a consistent pattern emerging. As indicated earlier, the plaintiff’s undoubted experience of blunt and unequivocal rejection by Mr. Mooney in October 1998, undoubtedly provoked very different feelings in the plaintiff towards Mr. Mooney thereafter.
188. I am satisfied that the memo of the meeting on 2nd November, 1998, put in evidence, is a fair and accurate account of the meeting. I also accept the evidence of Mr. McEvoy and Mr. O’Neill as to what transpired at the meeting. I am quite satisfied that the plaintiff did not, as she claims, complain at that meeting of the catalogue of sexual harassment and bullying that emerged much later. At this meeting, the plaintiff found herself confronted with a very serious matter, the criminal damage to Mr. Mooney’s car. The plaintiff’s dealing with this matter is far from impressive. The carrying out of the criminal act, in the first place, was, for somebody in her position, reprehensible and irresponsible. The involvement of Ms. Rosario Mannion, whose evidence I fully accept, in the incident without her knowledge and the plaintiff’s subsequent phone call to her to conceal evidence does even more discredit to the plaintiff. Ms. Rosario Mannion was a young woman who had just taken up employment in the town in a public sector job, and to have inveigled her, knowingly, into this criminal escapade, warrants particular censure.
189. The plaintiff knew she was in trouble at this meeting on 2nd November, 1998, and her reaction, initially, in denying any knowledge of the incident and condemning it, which I accept occurred, was discreditable. It is clear from the evidence of Mr. McEvoy and Mr. O’Neill, that to excuse or explain her situation, notwithstanding her denial of involvement in the criminal damage, she suggested that she had a grievance with Mr. Mooney. I am quite satisfied that the nature of the grievance outlined was confined to the incident in the Daingean Road house i.e. Mr. Mooney’s house, in May 1998, concerning which she gave some outline detail, and the cheque incident.
190. When confronted with this information, in my opinion, Mr. O’Neill reacted entirely appropriately in declining, in the context of the information given, to entertain the matter any further because it was made apparent to him by the nature of the grievance outlined that it pertained purely to a very personal and intimate transaction which had occurred between two teachers in the context of their private lives, away from the school, and there was no connection to or involvement of the school in it. The cheque incident, as described in isolation, could only have been regarded as, at worst, a trivial incident, but in all probability, no more than an unfortunate mistake on the part of Mr. Mooney. In no sense, in the manner in which it was described at that meeting, could it have been regarded as an incident of or any part of a process of sexual harassment or bullying.
191. It is commoncase that on 5th November, 1998, the plaintiff and Mr. Bracken did go to Mr. McEvoy’s office and there the plaintiff gave a fuller account of the Daingean Road incident. I am quite satisfied that was the extent of any grievance against Mr. Mooney disclosed at that meeting. Thereafter, or about that time, the plaintiff went to the gardaí and admitted her culpability in respect of the damage to Mr. Mooney’s car. No doubt, by then, and as a result of what had been intimated to her in the meeting on 2nd November, 1998, she must have realised that further denial of it would turn out to be futile.
192. In the meeting of 9th November, 1998, with Mr. O’Neill and Mr. McEvoy, a different context applied. At this stage, the plaintiff’s involvement in the incident of criminal damage was admitted. There could be no doubt but that this created a very serious problem for both the plaintiff and, indeed, her employers. I accept Mr. O’Neill’s evidence and also Mr. McEvoy’s evidence that they regarded the plaintiff as a very good teacher who, until then, had a blemish-free record, and that they were anxious to protect her career from the glaringly obvious and very serious consequences for her. I am quite sure that the plaintiff also must have been aware of the peril of her position so far as her career was concerned. This meeting, far from being a meeting to accuse and possibly condemn the plaintiff for any breach of discipline, was quite the reverse. The whole tenor of the meeting was one in which the objective appears to have been to protect the plaintiff from the obvious detrimental consequences to her career resulting from her admitted actions. Towards the end of the meeting, as the memo of it indicates, the plaintiff again returned to her grievances with Mr. Mooney, no doubt as an attempt to explain or excuse her conduct. I am quite satisfied and have no hesitation in accepting the evidence of Mr. O’Neill and Mr. McEvoy that the matter raised by the plaintiff in this regard was again confined to the Daingean incident and there was not a setting out by the plaintiff of her series of complaints of sexual harassment against Mr. Mooney.
193. In the course of the plaintiff’s letter dated 17th November, 1998, to Mr. O’Neill, as requested, the plaintiff, towards the end of her letter, says, “I have the height of respect for the VEC and I am sorry that I caused you any trouble . . .” This is a sentiment which was volunteered by the plaintiff and it would appear to me to be wholly inconsistent with the complaint that is now made in these proceedings to the effect that in both the meeting of 2nd November, 1998, and the meeting of 9th November, 1998, the plaintiff was ill-treated by the defendants by not having her complaints listened to and properly investigated and, indeed, of encountering a strong bias against her in favour of Mr. Mooney.
194. I am quite satisfied that in none of these meetings did the plaintiff outline her allegations of sexual harassment against Mr. Mooney. It is accepted she did allude to the incident in the Daingean Road, but nothing more. Having regard to the very personal context to that incident, as it was revealed by the plaintiff, in my view, there was no grievance disclosed by the plaintiff in these meetings which would have warranted the activation of the relevant grievance procedures available at the time. Accordingly, it cannot be said that the defendants were in any way at fault in failing to have initiated an investigation under these grievance procedures.
195. If the plaintiff had made the allegations of sexual harassment, which she did, subsequently, in January 2001, and in these proceedings, I have no doubt but that the defendants would have done as they did in January 2001, promptly initiated the appropriate procedure to deal with the plaintiff’s grievance.
196. The plaintiff, in her evidence, said that she raised her sexual harassment complaints with Mrs. Wilson on 6th November, 1998. Mrs. Wilson denied any such discussion. I prefer the evidence of Mrs. Wilson on all aspects of her dealings with plaintiff and I am quite satisfied that if the plaintiff had raised these matters with Mrs. Wilson, that she would have assisted the plaintiff to have her grievance resolved. I am satisfied that Mrs. Wilson was not involved at all, at any stage, in dealing with the plaintiff’s issues in the school, as disclosed in these proceedings.
197. The plaintiff, in her evidence, claimed that her written retraction dated 13th January, 1999, of the allegation she made against Mr. Mooney on 5th November, 1998, in Mr. McEvoy’s office, was brought about by a threat of prosecution and by way of the threat of transfer. I accept the evidence of Mr. O’Neill and Mr. McEvoy that they had no involvement whatsoever in bringing about this retraction, and that Mr. O’Neill did not know about it at all at the time and only learned of it subsequently, and Mr. McEvoy’s only knowledge of it was when the plaintiff handed him the retraction in his office. The plaintiff’s evidence to the effect that the retraction was partly induced by a threat of her being transferred from Tullamore College is incomprehensible in the light of the undisputed evidence that, having initially made a written request for a transfer, later, by a letter of 20th December, 1998, she formally withdrew that request and nothing further happened in that regard. There is no doubt that Mr. Mooney was very anxious to obtain a retraction of that allegation and did pursue that matter, including initiating correspondence through his solicitor. I am quite satisfied it was entirely in response to Mr. Mooney’s approaches and also knowing the untruth of the allegation, that the plaintiff agreed to make that retraction.
198. This brings me, finally, to the events which unfolded in December 2000 and January 2001. After the incident in the staffroom on 5th December, 2000, it is quite clear that the plaintiff decided, in conjunction with her husband, that she should seek a transfer from Tullamore College and had a meeting with the CEO, Mr. O’Neill, on 13th December, and duly applied for the transfer. Indeed, the plaintiff’s husband also rang up requesting a transfer for the plaintiff. I am quite satisfied that the plaintiff, as an experienced teacher, would have been well aware of the difficulties involved in effecting a transfer at that time of the year when all of the schools would have had their teaching staff arranged from the start of the academic year, including their timetables. To have characterised the selection of Edenderry as vindictive, in these circumstances, seems to me a warped conclusion, wholly unsupported by any evidence. On the contrary, I am quite satisfied that Mr. O’Neill made every effort to accommodate the plaintiff and achieve her minimum desired result, namely, a transfer from Tullamore College with immediate effect, but that could only be done by placing her in Edenderry until a more suitable placement could be found before the start of the next academic year, which, in fact, occurred, in that, a transfer of the plaintiff to Ferbane was arranged in late May 2001. The plaintiff’s suggestion that the transfer on 26th January, 2011, was the defendants’ response to her formal letter of complaint of 25th January, 2001, is plainly absurd. As said earlier, the plaintiff had requested this transfer herself, as had her husband, and this process was in being since mid-December. The plaintiff had been out of work from 8th January, 2001, until 22nd January, 2001, thereby inhibiting a completion of that process. I am quite satisfied that the fact that the transfer took place on 26th January, 2001, and the letter of complaint was dated 25th January, 2001, and delivered on the morning of 26th January, 2001, is a mere coincidence over which the defendants had no control. Insofar as anybody was in control of the timing of these events, it was the plaintiff.
199. I accept the evidence of Mr. McEvoy and Mr. O’Neill that the first time that the plaintiff made the allegations of sexual harassment, apart from the Daingean Road incident in May 1998, was in her letter of complaint dated 25th January, 2001. It is quite clear from the evidence that the defendants i.e. Mr. McEvoy and Mr. O’Neill, reacted immediately to this letter of complaint and treated it with appropriate seriousness and immediately informed the plaintiff of the appropriate grievance procedure to be followed. The plaintiff took the initial step to follow the procedure by contacting Ms. Colette Lee, but shortly thereafter, the plaintiff went out on sick leave and remained out until the end of May. As the plaintiff had chosen to initiate the procedure, as she did, I am satisfied that the initiative remained with her to either pursue and complete the first stage of the procedure or, alternatively, to inform Mr. O’Neill or Mr. McEvoy that she no longer wished to pursue that course and wished to move to stage two, namely, the formal investigation.
200. I accept Mr. O’Neill’s evidence that he intended to closely monitor the carrying out of the procedure, and for that purpose, sought a meeting with the plaintiff one week after Friday 26th January, 2001, but the plaintiff had by then gone out on sick leave and said she was not available.
201. At no stage thereafter did the plaintiff revert to Mr. O’Neill with any indication as to how she wished to pursue the grievance procedure and Mr. O’Neill was inhibited from contacting the plaintiff, having received legal advice that he should not do so while the plaintiff was on sick leave. In my view, in this situation, the initiative rested with the plaintiff if she wished this matter to be dealt with while she was on sick leave and the onus was on her to have initiated contact with Mr. O’Neill. She did not do this.
202. In fact, early in May, the plaintiff, through her solicitor, intimated that she was pursuing her grievances by way of court proceedings, and, indeed, these proceedings were, in fact, issued on 14th May 2001. The necessary consequence of this was that the complaints and grievance procedure became defunct. I am quite satisfied that the defendants did everything they could to enable the plaintiff to avail of the complaints procedure in force since November 2000, and the fact that this was not pursued was entirely the result of the plaintiff’s own actions and choices.
203. The plaintiff also made complaints specifically against Mr. McEvoy that during the year 2000, that Mr. McEvoy treated her unfairly and in a discriminatory way by directing her to resume normal academic teaching of a class just before the Easter break, by sending a pupil back to class who had been sent on an errand by the plaintiff, and by also directing the plaintiff to return to her class when she encountered Mr. McEvoy in the corridor on her way to get a revision book. Mr. McEvoy has not denied that any of these incidents occurred, but explained that these would have reflected the general and well known policy in the school applied by him to all teachers, and were in no way an unjust or discriminatory treatment of the plaintiff. In his evidence, he elaborated that at the beginning of each year, he instructed teachers to ensure that they had in class the necessary resources so that downtime was avoided due to having to send pupils out on errands or, worse, to have the teacher leave the class to retrieve whatever was wanted. He also said that, notwithstanding that it might be the last day of term and many pupils might be absent, he insisted on classes being devoted in the normal way to the academic subject being taught, rather than the playing of games.
204. I accept Mr. McEvoy’s explanation in this regard and I am of the view that none of these incidents amount to bullying or harassment or any other form of ill-treatment of the plaintiff by Mr. McEvoy.
205. In the course of her evidence, the plaintiff complained that her arrest in respect of the fire at Tullamore College was actuated by the defendants. I have been told that the plaintiff has initiated separate proceedings against State respondents arising out of those events. Accordingly, I do not wish to say anything here which could be said to be a judgment on the issues arising in that case. I am, however, quite satisfied that the plaintiff’s evidence given in this case concerning her belief as to the involvement of the defendants, its servants or agents in that other matter, does not entitle the plaintiff to any relief against the defendants in these proceedings.
206. For the reasons set out above, I have come to the conclusion that the defendants have no liability to the plaintiff in respect of her complaints made in these proceedings, and, accordingly, I must dismiss her action.
Quigley -v- Complex Tooling & Moulding Ltd
[2008] IESC 44
(22 July 2008)
JUDGMENT of Mr. Justice Fennelly delivered the 22nd day of July, 2008
1. This appeal concerns an award of damages for psychiatric injury (reactive depression) found to have been caused by bullying or harassment in the workplace. In a judgment of 9th March 2005, Lavan J in the High Court found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” The learned judge, following a separate judgment on damages, awarded to the plaintiff the sum of €75,000 for general damages together with the sum of €773.94 special damages.
2. The defendant appeals on two grounds: firstly, that the evidence, though uncontradicted, did not bear out the plaintiffs complaints of bullying; secondly, that there was no sufficient evidence of a causal link between the bullying which the High Court judge found that the plaintiff had been subjected to and the depression his doctor found him to have suffered. The defendant also appeals against the quantum.
3. In spite of the comparative novelty of the cause of action, the Court has not been asked to decide any principles of law. The parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.
The facts
4. The Plaintiff commenced employment with a predecessor company of the defendant at its premises at Kells, County Meath, in or about August 1977. The defendant terminated his employment by dismissing him on or about the 18th October 1999. The defendant, which is no longer in business, carried on the business of assembly of computer parts.
5. The plaintiff, who lives in Kells, had been employed as a factory operative for more than twenty years before the defendant company took over the business in 1998. The defendant appointed a new American plant manager, Mr. Ron Skinner. Most of the plaintiff’s complaints relate to his treatment at the hands of Mr Skinner from 1998 until the termination of his employment on 18th October 1999.
6. The learned trial judge cited as amounting to uncontradicted evidence the particulars of the harassment alleged by the plaintiff in the statement of claim. His approach was to accept as established the matters particularised as follows:
“(a) During the month of July/August in 1998 the Plaintiff was subjected to humiliation at the hands of the Defendant Managing Director, Denis Hampton, following his refusal to accept a voluntary redundancy package which had been offered to him by John Dory, on behalf of the Defendant. During a meeting on the issue, the Plaintiff enquired of John Dory as to what was the reason behind the fact that he was the only member of staff to be offered voluntary redundancy, stating that it was the principle that interested him. John Dory stated “the principle, don’t make me laugh”, at which Denis Hampton laughed also.
(b) The Defendants its servant or agents made humiliating and demeaning reference to and about the Plaintiff, such as on the 6th of April 1999, when Ron Skinner informed Fidelma Browne, an operative into the Defendant Company, that the Plaintiff and a colleague Seamus Reilly, would be retaining their Grade 11 rate of pay, and stated “don’t worry, I’ll sort out the granddads”. On another occasion, after the Plaintiff had through exasperation resulting from the bullying and intimidation at work, raised his voice to a colleague, Ron Skinner asked Seamus Reilly “Do you think that Matt talks to his wife like that. Do you think she would accept being spoken to like this?
(c) The Plaintiff was subjected to excessive and humiliating scrutiny by the Defendant’s Plant Manager, Mr. Ron Skinner. He often stood for up to 30 minutes on a box approximately 8 feet behind the Plaintiff’s work station, with the effect of intimidating the plaintiff. He also made comments about the Plaintiff’s work, for example stating to Joe Power (an operative in the employ of the Defendant ) that he would have to give the Plaintiff “some broom training”, suggesting that the Plaintiff was not capable of the most basic duties, when in fact he had received two awards for cleanest work area from previous management. The plaintiff felt that the purpose of this intimidation and scrutiny was that Ron Skinner was engaging in a campaign to seek justifications for not paying the Plaintiff his Grade 11 rate of pay.”
7. Although there was some evidence in respect of paragraphs (a) and (b), each of those seem to relate to somewhat isolated incidents and there are at least some problems of proof relating to parts of those matters. In the event, those headings do not require analysis by the Court. It is clear that the overwhelming focus of the plaintiff’s complaints related to paragraph (c) and the behaviour of Mr Skinner.
8. The plaintiff claimed that he was being over-scrutinised by Mr Skinner. A flavour of this is given by the following quotation from the plaintiff’s evidence:
“Well, when I would be working away doing my job on assembly with 5 or 6 other employees doing the same job Mr Skinner would come and position himself on some platforms behind me and would be there for half an hour, 45 minutes, daily, watching me.”
9. He became aware of this when colleagues told him of it. Then he was conscious of it. Mr Skinner would be six or seven feet behind him. He would “take up the same stance and stand there with his arms folded just watching me.” This made the plaintiff feel very uncomfortable. The behaviour continued two or three times a week even after the plaintiff had complained through his shop steward. The plaintiff described the attitude and behaviour of Mr Skinner in the following answers:
“His attitude was that I was not capable of doing the assembly the way they wanted it done. He would tell the charge hand in question that any of my work was to be looked at, you know, over scrutinise and check this that and the other. I was so nervous with him watching me that I would make mistakes, because I was aware he is watching me…”
“If I was doing silk screening for instance he would say “I do not know why you are doing that, that is no good. You can see that is no good, there is a scratch on the surface” whatever a screw missing or something. Another day when I would leave …… things out and not do them he’d say, “look you could have done that and we can get that rectified. Go back on that” you know. So no matter what I was doing it just was not right for him”
“……when I would go to get a drink of water he would be standing at my section ……and he would be tapping the door as much as to say well there is nobody working here……I would leave down my drink of water and come over thinking he wanted to speak to me and when I’d come over he would walk off.”
10. The evidence of the plaintiff showed the behaviour of Mr Skinner to combine persistent watching, constant niggling criticism, failure to respond or communicate and inconsistency. As an example of the last, there was evidence of Mr Skinner telling the plaintiff to send a product out to a customer, though the plaintiff though it was defective and told him so, and Mr Skinner blaming the plaintiff when the customer returned the defective goods. Furthermore, the plaintiff’s evidence was amply supported by the evidence several other employees. It appears that the plaintiff was singled out for this treatment.
The defendant’s argument on the harassment issue
11. Mr Lyndon McCann, Senior Counsel, accepted, on behalf of the defendant, that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of “workplace bullying” at paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
12. Mr McCann submitted, and I would accept, that bullying must be:
· Repeated;
· Inappropriate;
· Undermining of the dignity of the employee at work.
13. Mr Patrick Hanratty, Senior Counsel, for the plaintiff emphasised the strength of the evidence and the fact that the plaintiff’s complaints were supported by the evidence of fellow employees. He laid particular emphasis on the fact that the complaints were not acted on by management. He said that they constituted a breach of the employer’s direct duty of care. It is not a case of vicarious liability.
14. The evidence of treatment of the plaintiff at the hands of Mr Skinner was fully accepted by the learned trial judge. In fact, it was, as he said, uncontradicted. Presumably, this was because the factory was no longer in business by the time of the hearing and Mr Skinner had no doubt returned to the United States. Whatever the reason, the evidence was unchallenged and the trial judge was entitled to accept it as true. I am satisfied that it amply meets the criteria of being repeated, inappropriate and undermining of the dignity of the plaintiff at work. Since the definition of workplace bullying taken from the Code of Practice laid down in the statutory instrument has been accepted by the defendant as an accurate statement of the common law duty of care, it is not appropriate to refer to other authority.
15. Mr Skinner’s treatment of the plaintiff represented a unique amalgam of excessive and selective supervision and scrutiny of the plaintiff, unfair criticism, inconsistency, lack of response to complaint and insidious silence.
16. The decision of the learned trial judge cannot be faulted in this respect. I would reject this ground of appeal.
The causation issue
17. The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to a identifiable psychiatric injury. The learned trial judge found that the plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” He awarded damages to the plaintiff for psychiatric injury, in the form of depression. On the question of causation, he stated:
“The plaintiff has offered uncontradicted evidence as to the immediate effect of the harassment on his state of health. Evidence has been offered to prove that the injuries of which the plaintiff complains had their root in the treatment of him by the servants of the defendant during his employment with the defendant.”
18. He also said that he accepted the evidence of Dr Coffey, the plaintiff’s general practitioner, who had given evidence on his behalf. On the other hand the learned trial judge did not refer to any of the detail of either the plaintiff’s evidence or that of Dr Coffey or her medical reports.
19. Mr McCann submits that the evidence simply does not bear out the contention that the depression from which the plaintiff suffered was causally linked to the harassment or workplace bullying.
20. At this point it is appropriate to recall that the plaintiff was dismissed from his employment in October 1999. He commenced proceedings against the defendant pursuant to the provisions of the Unfair Dismissals Acts. He was successful in those proceedings before the Rights Commissioner and, on appeal by the defendant, before the Employment Appeals Tribunal, whose determination was dated 7th February 2003. But the defendant had ceased trading in July 2002. The effect of the order of the Employment Appeals Tribunal was that the plaintiff was entitled to payment up until that date and a redundancy payment arising on the closure of the factory.
21. It is agreed that the plaintiff is not entitled in these proceedings to recover damages for any personal injuries suffered as a consequence of his dismissal from his employment.
22. Dr Coffey’s evidence must be read with her medical two reports. The plaintiff first attended Dr Coffey on 8th January 2001. He told her that he had been dismissed from his job in October 1999 and that he had been suffering from depression for six months before his visit to her. He said that he had won his case for unfair dismissal (obviously referring to the decision of the Rights Commissioner) but that the company were appealing the decision and the uncertainty of waiting for a date was adding to his anxiety. Dr Coffey stated, in her report (date 11th June 2001 but related to the visit of 8th January of that year) that the plaintiff “had become increasingly anxious about his impending case” and that “his symptoms of depression had intensified.” She concluded that the plaintiff had “suffered from a moderately severe depressive episode arising directly from his industrial relations problems.”
23. In cross-examination, Dr Coffey agreed that the plaintiff’s complaints related “to the fact that he had lost his job.” She referred to “the delay in the appeal date, the anxiety that surrounded that delay.” She had not recorded any complaint that the plaintiff had had been bullied or harassed at work and agreed that his difficulty was not attributed to such an origin.
24. Dr Coffey prepared a second report dated 24th March 2003 for the purpose of the litigation. She then mentioned that the plaintiff had a pending case against his employer “re harassment,” but did not otherwise refer to that issue. That report makes no mention of the cause of the plaintiff’s depression.
25. The picture presented by the medical evidence then is consistent only with the plaintiff’s depression having been caused by his dismissal and subsequent unfair dismissal proceedings and there is no medical evidence of a link with the harassment.
26. This is consistent with the plaintiff’s own evidence. He said: “…after all these appeals, had been heard…I realised that I wasn’t going to get my job back then it hit me……and then I went to the doctor.” He said that it was then that it “affected [him] mentally.”
27. Although the plaintiff elsewhere in his evidence described Mr Skinner’s behaviour as having shocked him and feeling very uncomfortable, pressurised and useless as an employee, he did not say that he had suffered symptoms of depression.
28. It is clear both from Dr Coffey’s evidence and that of the plaintiff that he did not consider himself to have been affected mentally until after his dismissal. He did not go to a doctor at all until some fourteen months after that event. He then said that his depression had started six months previously. The doctor gave no evidence linking that condition to the harassment or workplace bullying.
29. Consequently, the plaintiff has not discharged the burden of proving that his depression was caused by his treatment during his employment. It follows that, although the plaintiff’s complaints of bullying or harassment have been upheld, and his employer was in beach of its duty of care to him, the appeal should be allowed and the plaintiff’s claim dismissed.
Browne -v- Minister for Justice, Equality & Law Reform and Ors
[2012] IEHC 526 (04 December 2012)
JUDGMENT of Mr. Justice Cross delivered on the 4th day of December, 2012
1. Introduction
1.1 The plaintiff in this case was born on 1st June, 1957 and was attested as a member of An Garda Síochána on 25th February, 1978 and remained a member in good standing until his retirement in December 2011.
1.2 The plaintiff is claiming damages for a personal injuries loss and damage as a result of the alleged negligence breach of contract, conspiracy and breach of duty on the part of the defendants in allegedly permitting the plaintiff to be subjected to a campaign of bullying and harassment by his superiors and failing to take any proper steps to investigate his complaints.
1.3 The plaintiff is also claiming other ancillary reliefs.
1.4 Counsel on behalf of the plaintiff summarised the plaintiff’s complaints under twelve different headings. These complaints will be dealt with in turn subsequently.
2. Bullying and Harassment
2.1 As this Court has emphasised in Kelly v. Bon Secours Health System Limited [2012] IEHC 21 and Nyhan v. Commissioner of An Garda Síochána & Anor [2012] IEHC 329, there is no separate or distinct tort of bullying and harassment. The defendant owes a duty of care not to expose a worker to injury. In this regard, the plaintiff though a Garda Síochána is in no different position than any employee. One of the sub-aspects of this duty is the issue of bullying and harassment in the workplace.
2.2 The plaintiff’s case is that the bullying and harassment came not merely from fellow employees but were in fact orchestrated or directed from senior members of An Garda Síochána or what is sometimes known as corporate bullying.
2.3 In cases where the bullying emanates from fellow workers, issues such as foreseeability and the knowledge of employers are always relevant.
2.4 Clearly if the bullying is found to have emanated from management then no issue of vicarious liability would apply.
2.5 In Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349 at para. 13, Fennelly J. adopted the definition of “workplace bullying” at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as being an accurate statement of the employers obligations as follows:-
“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
Fennelly J. went on to state:-
“Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
2.6 The court accepted that definition in Kelly and Nyhan (above) and does so now.
2.7 If this plaintiff proves a campaign by management against him then unlike most plaintiffs in bullying case, he does not have to establish that the activities above complained of were known by the first named defendant or the second named defendant as he is alleging that senior management was deliberately orchestrating and organising the bullying.
2.8 As I stated in Kelly and Nyhan, in my view, the best summary of the questions to be addressed in a case such as this was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
2.9 As stated by this Court in Nyhan, these three questions are, of course, subject to the pre-existing requirement that the plaintiff establish an actionable wrong in the form of negligence, breach of duty, breach of contract or conspiracy. Whether or not any injury results from an actionable wrong is, of course, measured by the standard of reasonableness.
2.10 As this Court has also pointed the individual who believes that he or she has been subject to bullying and harassment frequently interprets every or most actions of their employers in an unfavourable light as if they are part of a campaign. Frequently, innocuous acts perpetrated without malice may come to be regarded as part of a harassment campaign.
2.11 Similarly, however, it must also be pointed out that for somebody who is sensitive and who believes themselves to have been bullied, actions that an ordinary robust employee would be regarded as a matter of nothing may further undermine confidence and may in fact be bullying by either fellow employees or management. This is, of course, especially the case if those fellow employees or management are aware of the stress that the employee or worker is labouring under.
2.12 In this matter I was assisted greatly by counsel on behalf of the plaintiff and on behalf of the defendants, I was furnished with written submissions from both sides and had the opportunity of observing the witnesses giving their evidence. It ought to be said that even where the court does not accept the testimony of one or other witness, the court does not believe that the witnesses were doing anything other than attempting to give the truthful evidence from their memory as best the could.
3 The Twelve Allegations
(A) The Canal Murders
3.1 The plaintiff was seconded at the express request of Detective Inspector O’S to assist in a murder investigation in Naas known as “the Canal Murders”. The plaintiff was chosen as the victims (and it seems the suspects) came from in or around Kilmainham and the plaintiff was known to the family of at least one of the victims.
3.2 Whilst on duty in Naas the plaintiff made claims for payment of subsistence allowance in accordance with An Garda Síochána finance code. Claims for the months of January and February 2000 were disallowed by Superintendent M. The plaintiff believes that these claims were legitimate and the court accepts that that is the case. The plaintiff claims that his superior, Superintendent M. was unhappy that the plaintiff had been posted to Naas away from his station and that he could ill afford to lose the services of an experienced detective. The court accepts that Superintendent M. was not happy to lose one of his detectives and made a number of inquiries on the plaintiff as to when he would be returning to Kilmainham.
3.3 The court accepts the evidence of the plaintiff that his initial claim was denied in its entirety and that he was required to submit a reduced claim for only those hours which he was actually at meetings or conducting inquiries in Naas which was eventually paid.
3.4 The plaintiff perceived the initial refusal to be unfair and submitted a letter of complaint through his solicitor.
3.5 It is the plaintiff’s belief that it was this complaint through his solicitor that annoyed his superiors against him and that in any event that the latter claim for subsistence was never paid. It is not clear whether the plaintiff dealt with the queries from Superintendent M. as to these claims or not. The court accepts that the plaintiff would have been entitled to the full claim and that he has not been paid in their entirety but that is not the same as to suggest that the refusal of the defendants through Superintendent M. to pay the assistance amounted to bullying and harassment of the plaintiff.
3.6 There was a dispute as to the quantum of the claim and the court readily accepts that Superintendent M. may well have been annoyed about the manner in which the plaintiff was pursuing this claim and also readily accepts that this dispute and the legalistic manner which he adopted in dealing with his claim may have formed the basis of a soaring of further relations between the plaintiff and some of his superiors but the court does not accept that this incident of itself amounted to bullying and harassment. Superintendent M. was entitled to strictly scrutinised expenses claims. The fact that legitimate claims were not paid does not amount necessarily to bullying.
3.7 Though various declaratory reliefs are also claimed in relation to this sum, in view of subsequent findings, the court will not make an order in respect of this claim.
(B) The theft of an unmarked garda vehicle from Kilmainham Station
3.8 The plaintiff was required in September to travel to Naas to collect an official unmarked vehicle to which he had been assigned while working in Naas in order to return the vehicle to Dublin. He also had duties to perform in Naas and did not return the vehicle that evening to Garda Headquarters, Phoenix Park. The plaintiff said that the reasons he did not return it to headquarters in Phoenix Park is that there would not have been a garda there to sign in the vehicle at night time and that he attempted to park the vehicle in Kilmainham Garda Station but the car park was full and he parked it on the street outside the station.
3.9 On the night of 19th September, 2000, the car was stolen from outside the station.
3.10 Forensic evidence established that the vehicles lock had been forced and fingerprints had been found indicating that the vehicle had been forcibly started.
3.11 An individual subsequently pleaded guilty to stealing the vehicle from outside the garda station although in earlier statements that individual had contended that he had taken the vehicle from elsewhere and that it was unlocked.
3.12 The court rejects any suggestion that the vehicle was either unlocked or left in an alterative location and indeed given the conviction of the individual for stealing the vehicle from outside Kilmainham Station, the court cannot understand how it was suggested to the plaintiff in cross examination that he may have left the vehicle unlocked and elsewhere.
3.13 Following the criminal conviction of the thief, Chief Superintendent D. revoked the plaintiff’s permission to drive the vehicle citing ultimately para. 22.2(1)(a) of the code (having previously cited a different section). This revocation was not ultimately set aside for approximately eight and a half years.
3.14 It is contended by the plaintiff that the removal of permission by the Chief Superintendent was invalid as para. 22.2(1)(a) refers to competency to drive and by letter from Superintendent M. stamped 8th February, 2001, it is clear that the withdrawal of authorisation was “as a result of (the plaintiff’s) negligence and carelessness in ensuring the safe custody of an official vehicle entrusted to him resulting in the vehicle being the subject of unauthorised taking”. Subsequently, a memo of 9th February, 2001, Chief Superintendent D. stated there was a “degree of negligence” displayed by the plaintiff in parking the vehicle outside Kilmainham Garda Station without “securing” it.
3.15 The authority of the plaintiff’s superiors to withdraw his permission to drive a garda motor vehicle is not in issue in these proceedings in the sense of a judicial review decision that is being impugned.
3.16 The court accepts that the plaintiff could have and should have left the vehicle in Phoenix Park despite the fact that the office was closed as there was a member on duty to whom the keys could have been left. The court accepts that while the vehicle was locked and was stolen when locked, that leaving a car on the street which ought to have been in at least placed in the car park of Kilmainham Garda Station amounts to it being “unsecured” at least to a degree.
3.17 For the purposes of this judgment, the court will accept the provisions of para. 22.2(1)(a) which referred to certificates of competency to drive do probably allow the plaintiff’s superiors to withdraw the permission to drive because of perceived negligence in the manner that it was left by the plaintiff on the street.
3.18 Accordingly, somewhat reluctantly, the court is of the view that the removal of the plaintiff’s permission to drive, the vehicle does not of itself amount to bullying or harassment or indeed is any legal wrong. The strength of the submissions on behalf of the plaintiff that the decision by Chief Superintendent D. to revoke permission to drive were based upon misapprehension that in fact the vehicle had been unlocked on the street in Kilmainham, is noted but the court feels that “unsecured” can conceivably cover a situation where the vehicle was left on the street though locked.
3.19 This, however, is not the end to the allegations of bullying and harassment in relation to the revocation of the authority to drive for a period in excess of eight and half years.
3.20 Superintendent M. and Chief Superintendent D. denied that the revocation of the permission to drive was a punishment. The court is of the view that the initial revocation was indeed a punishment but does not come to the conclusion that this punishment has been established as being bullying and harassment. What the court does find is that the explanations by the defence witnesses as to the reason that the revocation was continued (with clear implications as to the career and effectiveness of the plaintiff as a detective) is unreasonable excessive and without justification and amounted to an irregular attempt by the defendants to control the plaintiff.
3.21 The contention by the defendant’s witnesses that the plaintiff would have been given back his vehicle, after approximately twelve months, had he only applied for it, was made for the first time in evidence in this court and in the view of the court merely adds to the plaintiff’s grievances in this regard.
3.22 As was pointed out by submissions on behalf of the plaintiff, the plaintiff was never informed that the defendants would have returned the entitlement to drive a garda vehicle to the plaintiff after twelve months had he merely asked them to do so. He was given no documents advising him that he could make an application or that he would have looked upon favourably. It was not pleaded in the defence that the plaintiff could have adopted this course and Mr. T.L. of the Garda Representative Association specifically wrote by correspondence October 2005 requesting that the decision be reversed indicating that it marginalised the plaintiff’s position and sidelined him and this request received no response.
3.23 Furthermore, the ultimate decision to return the plaintiff permission to drive was made in 2009 without any further formal request to the defendants.
3.24 The court holds that the continuing deprivation of the plaintiff’s use of the car by the defendants after the period of one year up to 2009 was an attempt by the defendants to control and punish the plaintiff who was regarded as a source of trouble who had involved his solicitor in the expense issue discussed above, and that it was entirely unfair and an example of bullying and harassment by the defendants at a high level of management.
(C) The Rowntree Site
3.25 The plaintiff lived adjacent to the former factories of Nestle/Rowntree in Kilmainham. There was local opposition to this development and the plaintiff attended a protest meeting.
3.26 The plaintiff claims he was approached while at or after that meeting by a superior suggesting that they were undesirable characters of a subversive nature taking control of the meeting and of the protest campaign. A leaflet was being handed out at that meeting advertising a further meeting in March about the issue.
3.27 One day before the proposed a further meeting a copy of the leaflet advising of the protest was passed under the door of Inspector M. at Kilmainham station. This leaflet had a photocopy of the plaintiff’s signature, rank, number and station appended to its end.
3.28 It has been subsequently accepted by the defendants that this signature is identical to and in fact was “lifted” from a letter the plaintiff wrote on 20th September, 2000, by way of explanation in relation to the taking of the garda vehicle to the sergeant in charge in Kilmainham.
3.29 This letter of September 2000 would have had a very limited circulation among fairly senior gardaí but clearly the plaintiff’s signature was taken from that letter and photocopied at the foot of the notice in relation to the protest meeting.
3.30 In the letter of 20th September, the plaintiff’s signature was appended and underneath the signature, his name and number and station are typed. However, the typist of that letter forgot to put an “e” at the end of Browne. This same transcription occurs at the foot of the notice that was put under Inspector M’s door and as stated, it is accepted by the defendants that this signature and identification was then affixed to the notice of the protest meeting suggesting that the plaintiff was supporting and involved with this protest in his official capacity as a garda.
3.31 It is clearly inappropriate for a member of An Garda Síochána to be involved in any protest in being orchestrated by any political party or indeed by any extremists or subversives.
3.32 The court is of the view that there was clearly an attempt by some relatively senior members of An Garda Síochána who had a copy of the letter of 20th September to implicate the plaintiff with a political protest being organised or orchestrated by extremists or subversives.
3.33 The court is also of the view that this is defamatory of the plaintiff.
3.34 The matter was published to Inspector M. The inspector made inquiries about the matter and advised Detective Garda T. who was a friend of the plaintiff and he chose not to advise the inspector that it was indeed the plaintiff’s signature.
3.35 The court is of the view that the publication by Inspector M. to Garda T. would have been covered by qualified privilege.
3.36 The court holds, however, that the publication of the leaflet to Inspector M. was a Libel on the plaintiff and that it was also part of a bullying and harassment campaign against the plaintiff seeking to undermine him in his position as a Detective Garda.
(D) The Failure to Attend the Trial in April
3.37 The plaintiff was advised by Superintendent M. that he was going to hold a sworn inquiry into the plaintiff’s non-attendance at a court case on 11th April, 2001. The plaintiff advised Superintendent M. that he had not received any notification of that court case.
3.38 Superintendent M. had been informed by the plaintiff’s Sergeant, Sergeant C., that a notification had been sent.
3.39 The plaintiff’s explanation was supported by Detective Sergeant K.W. who advised management that no notification was received by him for transmission to Detective Garda B. and no entry relevant to the same was entered in the correspondence register.
3.40 This view of Sergeant W. was disputed by Sergeant C. and a letter was written on behalf of Superintendent M. dated stamped 11th April, 2001, indicating that the issue could only be dealt with “by way of disciplinary proceedings”.
3.41 The explanation given by the plaintiff and supported by Sergeant W. was indeed reasonable and was ultimately accepted by management, but the court is not of the view that the threat that disciplinary proceedings would be undertaken was unreasonable or, indeed, was a matter of bullying or harassment.
3.42 Ultimately, and very sensibly, no disciplinary proceedings ensued. The non-attendance of a garda at a hearing which resulted in the proceedings being struck out is, of course, a serious matter and, if wilful, would have warranted disciplinary proceedings. In the circumstances, the court does not hold that the matter amounts to an example of bullying and harassment of the plaintiff.
(E) The Criminal Investigation into Alleged Fraudulent Claims for Alleged Overtime
3.43 At a meeting with Superintendent M. concerning the alleged failure to attend the April trial, Superintendent M. apparently produced the plaintiff’s overtime and expenses claim form and alleged that the plaintiff had altered this document in a fraudulent manner.
3.44 It transpired that the plaintiff was required at Cloverhill Court on the day in question and attended at short notice. He had previously submitted his application for overtime and expenses and he subsequently added the claim in respect of Cloverhill.
3.45 Superintendent M., however, believed that there was fraud involved in a claim for £7.95 and made a complaint which led to a criminal investigation by Inspector Q.
3.46 The court was not satisfied with Superintendent M’s explanation as to why a criminal investigation for fraud was initiated over a claim for £7.98 and, in particular finds that Superintendent M’s explanation that his difficulty centred upon the fact that the certificate of a court attendance was not signed by the appropriate officer was not correct.
3.47 The court is not of the view that there was any basis for a criminal investigation in relation to the overtime and believes that, as a matter of probability, this investigation or threat of same was prompted by animus against the plaintiff by his superiors and part of the campaign to control him. The court holds that this also was an example of bullying and harassment.
(F) The Altercation at the Locker
3.48 In July, 2001 the plaintiff was asked by retired Detective Sergeant W., an old friend of the plaintiff, to assist his son B. to remove personal items from his locker.
3.49 The Station Sergeant, Sergeant C. who was in the detective office at the time, was concerned that the plaintiff and Sergeant W’s son were acting in contravention of the Garda Regulations by removing official property and files from the station.
3.50 There was a clear altercation in the station which also clearly became heated. Sergeant C. insisted that the plaintiff was aggressive to him and the plaintiff said that he was trying to “hold the ring” between Sergeant C. and the young Mr. W., Mr. W. did not give evidence.
3.51 In any event after the altercations, the plaintiff was the subject of a complaint from Sergeant C. which led to an investigation under the An Garda Síochána Disciplinary Code and a sworn inquiry into alleged insubordination on four counts. This inquiry which was held on 12th March, 2002, convicted the plaintiff on one count and acquitted him on the others.
3.52 The plaintiff appealed this conviction and on 10th March, 2003, the conviction was overturned.
3.53 The plaintiff complained that he was subject to false allegations and perjury by Sergeant C. and he, in turn, made a formal complaint against Sergeant C. which did not result in any further disciplinary proceedings.
3.54 It is submitted on behalf of the plaintiff that the disciplinary proceedings against him were inappropriate and excessive given the fact that three of the four charges were initially dismissed and the fourth one ultimately dismissed on appeal.
3.55 The court is not of the view that this incident is an example of bullying or harassment. Sergeant C. who had clear differences with the plaintiff by this time was very annoyed as, indeed, was the plaintiff at what occurred in the station. It is clear that there was an altercation and heated exchanges ensued.
3.56 An officer such as Sergeant C. may honestly believe that a junior officer was insubordinate to him and make a complaint about the alleged insubordination. The fact that an Inquiry finds there is no basis for such complaint is not, in the view of the court, evidence that the complaints were entirely unreasonable or, more importantly, that they were motivated by any malicious campaign or conspiracy against the plaintiff or amounted to bullying and harassment against him.
3.57 Once the complaint was made by Sergeant C. and a prima facie case was found, it was not unreasonable that a formal inquiry under the An Garda Síochána Disciplinary Regulations was held and, indeed, were the authorities not to hold such inquiry they might themselves be criticised.
3.58 The plaintiff’s allegations under this heading are not upheld.
(G) Improper Dress
3.59 The Book of Evidence in the Canal Murders trial had apparently been stolen from court in North Brunswick Street on 7th September, 2001. This is clearly a very serious matter and on 8th September, 2001, the plaintiff met with an informant to recover this Book of Evidence. Ultimately, the book was recovered as a result of information received.
3.60 After his meeting with the informant, the plaintiff arrived at Kilmainham Station at 7.30pm on 8th September somewhat late and was summoned Superintendent M. who the plaintiff alleges censored him for being improperly dressed and for not having logged into the computer. He was subsequently told to get home and dress appropriately and log himself into the computer.
3.61 It is not the view of the court that Superintend M’s reaction to the plaintiff appearing late in the station and not appropriately dressed was unreasonable.
3.62 Subsequently, when it transpired what the plaintiff was doing and the good work he had achieved nothing further came of it and the court does not hold that it was an example of bullying or harassment for the Superintendent to take the attitude that he did.
(H) The Witness Order on the Plaintiff
3.63 In October, 2001 Sergeant C. served a witness order on the plaintiff requiring him to attend a murder trial. The plaintiff had previously served summonses on witnesses some of whom it was feared might not attend. The plaintiff explained that he would be on holiday on the date and applied for seven days leave but was advised he could not because he was required in trial.
3.64 The plaintiff believes that Sergeant C. had told members in the station that the plaintiff had tried to “con” Sergeant McC into signing his leave form and an altercation occurred between the plaintiff and Sergeant C. resulting in a complaint by Sergeant C. of alleged insubordination.
3.65 The accused in the trial changed his plea and the plaintiff’s attendance was not required. He was able to take his annual leave and ultimately nothing occurred further on the matter.
3.66 The court is not of the view that this incident amounts to bullying or harassment. Clearly, the plaintiff was going to be required to attend at a murder trial and his refusal to do so would be a very serious matter. However, the fact that the incident, which the court believes was minor, possibly could have led to more serious disciplinary affairs indicates the tense state of personal relations at the time in the station.
(I) The Missing Statements in the Rape Case
3.67 In September or October, 2003 original statements in respect of a rape allegation were locked in the plaintiff’s cabinet together with an exhibit. These statements and the exhibit were missing from the plaintiff’s locker when the plaintiff opened it.
3.68 The plaintiff reported this fact to his superiors and the fact that be believed the statements were deliberately taken from his locker. The plaintiff made a complaint that this taking of files and exhibits was part of the campaign of bullying against him and notwithstanding the fact that Detective Inspector O’G. recorded that the plaintiff made this allegation in December, 2003 it was wrongly suggested to the plaintiff by the defence that his first reference to this claim did not arise until February, 2005.
3.69 It was decided not to conduct any criminal investigation into this matter and the plaintiff complains about this. The plaintiff was the subject of a complaint by the victim of the crime as to the missing evidence which investigation exonerated the plaintiff.
3.70 The court is of the view that it was not unreasonable of the plaintiff’s superiors to take a decision not to make a criminal investigation of the theft of the evidence and the files from the plaintiff’s locker. The court is also of the view, however, that the actual stealing of these documents from the plaintiff’s locker, which the court accepts occurred, is evidence of a campaign by members of An Garda Síochána against the plaintiff in order to discredit him in the eyes of his superiors. These items could only have been stolen by a member of An Garda Síochána as there is no suggestion of any “break-in” to the station. It is not clear who was responsible for this incident and it probably was some junior members of the force and the court does not accept that this campaign was necessarily orchestrated by the senior officers. However, the stealing of these items was clearly aimed at undermining and demonising the plaintiff in the eyes of his superiors and was an example of bullying against him within the definitions outlined above. It would have been clearly foreseeable that this action would have undermined the plaintiff’s dignity and caused him distress and injury in his career as a garda.
(J) The Removal of the Plaintiff’s Firearm
3.71 In October 2004, the plaintiff was rostered by Sergeant C. in a manner which the plaintiff considers was excessive and unfair.
3.72 The court does not accept that the rostering by Sergeant C. was in fact unfairly directed against the plaintiff in that the resources in the area were stretched at the time and though the plaintiff was rostered more frequently than others, there was an explanation given for this in court which explanation the court accepts. The court does, however, accept that the plaintiff who had shown stress previously and who had been given a sick certificate for a week due to his stress genuinely believed that this rostering was part of his superior’s campaign against him.
3.73 The court does also accept that the action by the plaintiff in “going sick” was as a result of genuine stress or anxiety. Indeed, though the plaintiff was questioned on this point in court and though witnesses from the garda authorities from time to time seemed to suggest that the plaintiff’s refusal to obey his instructions was something other than as a result of sickness, the plaintiff’s employers did accept that he was absent for a week due to anxiety or stress and accordingly cannot now in the view of the court suggest that there was anything bogus about the plaintiff’s reaction to him being rostered. He was medically certified as unfit for one week.
3.74 While the plaintiff was out sick, he was required to return to Kilmainham Garda Station on 8th October, 2004 and Superintendent Q. decided that his firearm ought to be removed given that the plaintiff was suffering from anxiety. Chief Superintendent D. agreed with this decision of Superintendent Q. On 9th October, 2009, Chief Superintendent D. reported that two days previously the plaintiff had let be known to his immediate supervisor, Sergeant C. that he would not perform his duty and reported sick suffering from stress and that he had submitted a medical certificate stating that he suffered from “anxiety”.
3.75 Chief Superintendent D. stated that:-
“I am concerned at the member’s attitude in refusing to carry out the duty he had been detailed to.
I respectively ask that [the plaintiff] be examined by a psychiatrist through the [CMO] to determine his continued suitability as a member of the detective branch police…”
3.76 At the handing over of the firearm, Superintendent Q. stated in evidence that he offered a transfer to the plaintiff to Kevin Street Garda Station (with which evidence the plaintiff agrees) but the plaintiff declined to accept this offer. The plaintiff says he refused the transfer as he would have had to continue to work under Chief Superintendent D. and indeed because Sergeant C. would have continued to be in a position to roster him in a manner that the plaintiff considered to be excessive.
3.77 Evidence was given on behalf of the defendants that had the plaintiff accepted a transfer out of Kilmainham that consideration would have been given for a return of his firearm. The plaintiff was not advised of that potential benefit to him when offered the transfer initially or indeed at any time thereafter.
3.78 After examining the plaintiff, the Chief Medical Officer and an independent psychiatrist both found that the plaintiff was fit for duty and to carry the firearm. They also accepted the fact that he had been suffering from anxiety due to work related difficulties.
3.79 On 14th February, 2005, Superintendent Q., Detective Inspector O’G. and Superintendents B., C. and D. and Sergeant C. made a decision not to return the plaintiff his firearm having been advised that in a letter from Assistant Commissioner R. dated 3rd February, 2005, that the Chief Medical Officer “advised the member fit for duty including firearms duties”. None of the decision makers at this meeting were apparently in possession of any of the medical reports or the opinions directly from the Chief Medical Officer or the psychiatrist and neither did they chose to request copies of any medical reports before they made their decision.
3.80 Chief Superintendent D. in a letter dated 15th February, 2005, outlined the reasons for the “unanimous agreement” that the firearm should not be returned to the plaintiff as follows:-
“[The plaintiff] was sick leave twice with anxiety and stress in July 2001 and October 2004.
[The plaintiff] has a personal grudge against DS C. his immediate supervisor in Kilmainham Station.
[The plaintiff] will not accept DS C., Kilmainham Station, as his supervisor.
[The plaintiff] refused to work on an armed protection post in Inchicore on 7th October, 2004, having been detailed to do so, on a duty roster drawn up by DS C. It is alleged that the [the plaintiff] wrote the word ‘unavailable’ on the duty roster for 7th October, 2004 and told DS C. he was going sick. [The plaintiff] then reported sick with stress and furnished a doctor’s medical certificate certifying him unfit for duty with anxiety.
The divisional officer – Chief Superintendent D, Pearse Street Station, who is an employer under the Safety, Health and Welfare at Work Act 1989, and in such capacity has a public and statutory duty and in particular a duty of care for the protection and safety of his employees and members of the public and as such has deemed [the plaintiff] not to be a fit person to have possession of a firearm. The divisional officer based his grounds which are outlined above for arriving at this decision following the meeting in Kevin Street Garda Station earlier on the evening on 14th February, 2005, with DS C., Kilmainham Station, DI O’G., Kevin Street Station, DS B., Pearse Street Station and S Q. Kevin Street Station, together with his own responsibilities as an employer under the Safety, Health and Welfare at Work Act 1989.”
3.81 In response to a question from the court, Detective Sergeant C. specifically indicated that he was not in fear of the plaintiff using the gun on him.
3.82 It should be noted that almost all of the above reasons are in fact disciplinary reasons. In evidence, Chief Superintendent D. did indicate that he was fearful, in effect, that the gun might be used by the plaintiff, who had suffered from stress or anxiety, on Sergeant C. The court does not accept that to be an accurate description of Superintendent D’s state of mind at the time as had the plaintiff agreed to a transfer from Kilmainham, it is clear that his gun would have been returned.
3.83 The court does not accept that the issue of the plaintiff potentially abusing his firearm as a result of his past stress was in the circumstances a valid evidence based medical reason as the decision makers ignored and had not read the medical reports which the management had secured.
3.84 Other than the supposed issue of stress, all of the matters that were taken into consideration at the meeting in February 2005, were disciplinary matters. It seems clear that the plaintiff’s supervisors did not really accept that the plaintiff’s absence from work after the rostering issue was a genuine illness related one. The court has already indicated that it cannot accept there to be any doubt other than the plaintiff was genuinely suffering from anxiety for approximately one week after the incident and this fact was fully accepted by his employers at the time.
3.85 It was submitted by the plaintiffs that as the reason for the depriving of the plaintiff of his gun in February 2005, were in essence disciplinary reasons and that had disciplinary proceedings been initiated, the plaintiff would have had an opportunity of being heard that therefore the decision was invalid. It is again important to make clear that this case is not proceeding on the basis of any judicial review type of inquiry to adjudicate on the rationality of decisions being made by the plaintiff’s employers. The decisions will only fall to be analysed in terms of whether or not they may amount to bullying or harassment or any actionable wrong.
3.86 The court accepts that the decision in relation to firearms is a matter for the plaintiff’s superiors. The court also accepts that the initial decision to remove the plaintiff’s firearm in October 2004, at a time the plaintiff was suffering from stress or anxiety was a reasonable decision to make.
3.87 The court is not of the view, however, that the continuation of the refusal to allow the plaintiff to have a firearm after it was clearly indicated by the Chief Medical Officer and the independent psychiatrist that the plaintiff was fit medically for the carrying of a firearm was a fair decision.
3.88 The court does not accept the rational of the decision as outlined by the defence witnesses.
3.89 The court has come to the conclusion that had the plaintiff accepted a transfer out of Kilmainham, he would have been readily given his gun back certainly by the meeting of February 2005 and that the refusal to return his gun to him was part of an informal disciplinary decision to punish the plaintiff as a result of his alleged grudge against Sergeant C. and his alleged refusal to accept Sergeant C. as his supervisor.
3.90 If the plaintiff could have been given back his gun after a transfer out of Kilmainham (even to a station in the same district) it is clear that public safety or health issues were not involved and the court rejects the explanation given by the defence witnesses in this regard.
3.91 The court fully accepts that being a detective without his firearm (and also for a time without the ability to drive a car) was a serious impairment to the plaintiff’s ability to function fully. The court finds that it is only when the medical experts indicated forcefully that the plaintiff was fit medically to have a firearm and repeated this when, in effect, asked for a second opinion by the plaintiff’s superiors, that it was decided as a method of punishment or control of the plaintiff to continue his depravation of a firearm. The court believes that the plaintiff’s superiors were unfairly using the firearm to control the plaintiff and if possible to remove him from Kilmainham where they perceive him as a troublemaker.
3.92 The court does not accept the evidence of the plaintiff’s superiors to the effect that they were concerned after the Abbeylara incident and Inquiry, that the plaintiff would or might use his firearm on other members. The court believes that this is an explanation that was come to when it was clear there was no medical basis of depriving the plaintiff of his firearm. It is the view of the court that the continuing deprivation of the plaintiff of his firearm after February 2005 can only be regarded as an example of bullying and harassment on the plaintiff.
3.93 The seriousness of the plaintiff’s position, as a detective garda without a car or firearm, is indeed evidenced by letter of 4th October, 2006, from Chief Superintendent M. giving the plaintiff fourteen days to explain why he should not be returned to uniform duties as he had been allegedly rendered incapable of performing his duties by reason of his absence of a firearm and authority to drive a vehicle. The fact that nothing came of this letter does not alter the fact that it clearly is evidence of the seriously debilitating situation the plaintiff was working under as a detective garda.
(K) The Poster Campaign in Kilmainham Garda Station
3.94 Various posters were placed in locations in Kilmainham Garda Station around February 2010, the plaintiff alleges to be examples of bullying and harassment. These posters or “flyers” contains such statements as “Free Willy” and “D. Garda Willy Browne – Fighting to clear his name since 2001” and “D. Garda Willy Browne is an innocent man” etc.
3.95 The court accepts that these posters were unfortunate and indeed could be regarded as degrading. The court thinks, however, that the posters represented a misconceived attempt at humour or “ragging” rather than bullying or harassment.
3.96 It is, of course, the case that “ragging” can be very insidious and can in certain circumstances amount to an example of bullying and harassment, however, in this case the plaintiff did not make anything about these posters and the court will not regard them as being an example of bullying or harassment.
(L) The Failure of the Defendant to Carry Out an Inquiry
3.97 The plaintiff alleges that the defendants failed to investigate his legitimate complaints of bullying and harassment.
3.98 The plaintiff requested the Garda Representative Association to intervene at local level and in 2004, the plaintiff requested Mr. T.L. of the Garda Representative Association to intervene at a higher level.
3.99 It was submitted by the plaintiff that the actions of the Garda Representative Association were a de facto invocation of grievance and harassment procedures to which no objection was made in respect of formality until 2011. The court accepts that Mr. T.L. made repeated efforts to bring the plaintiff’s grievances to the attention of the authorities.
3.100 The court accepts that the plaintiff’s concerns were treated in a manner that indicated that the defendants did not really take his complaints of bullying and harassment seriously.
3.101 The court has already found that there were a number of examples of bullying and harassment both by more junior members of the staff and also by more senior management.
3.102 The court accepts that these actions and the combination therefore represent an example of the definition of bullying adopted by Fennelly J. in Quigley (above) have been actions “which could reasonably be regarded as undermining the individual’s right to dignity at work”.
3.103 The court is not of the view that the actions of the defendants in failing to properly investigate the plaintiff’s complaints or in failing to evoke disciplinary proceedings or in failing to deal with the various representations made on behalf of the plaintiff by the Garda Representative Association, while highly regrettable amounts to an example of bullying and harassment.
4 Conspiracy
4.1 Given the findings already made, the court does not feel it necessary to make any further findings under the additional claims for damages under the headings of conspiracy.
5 Injury
5.1 The next issue is whether as a result of the above actions the plaintiff has suffered what. Clarke J. in Maher v. Jabil Services Limited (above) defined as an injury to health as opposed to ordinary occupational stress attributable to the workplace which was reasonably foreseeable.
5.2 The court is of the view that both the actions of senior management and of the more junior gardaí were reasonably foreseeable to undermine and cause injury to the plaintiff. The fixing of the plaintiff’s name and signature to a political leaflet advertising a meeting associated with undesirable political elements can only be designed to undermine the plaintiff as indeed can the removal or theft from his locker of exhibits. The continued removal of the plaintiff’s right to drive a garda vehicle, the threatening of a criminal fraud investigation to a disputed trivial claim for overtime and the continuing removal of the plaintiff’s right to carry a firearm also as found were attempts to punish the plaintiff and were clearly constituted to undermine the plaintiff in his role as a garda and it was reasonably foreseeable that injury would result.
6 Quantum
6.1 The court was treated to an extensive analysis from both sets of witnesses to the plaintiff’s actual earnings and the notes that the plaintiff did earn less than some of his peers for a period. The plaintiff, however, has not established on the balance of probabilities the extensive claim for loss of earnings that he has made out and the court will award the plaintiff under the head a small sum of €5,000 for loss of earnings.
6.2 The plaintiff has made out a proper claim that some of his substance monies in relation to the Canal Murders etc. was not fully paid to him but rather than make any of the declaratory orders sought under this heading, the court includes any sums due under the above heading in the sum of €5,000 already awarded.
7 General Damages
7.1 The court believes the plaintiff suffered a significant stress reaction. The plaintiff was only out of work for two weeks as a result of anxiety or stress. The plaintiff’s injury, however, is not limited to that two week period. The court heard the evidence from Dr. Geraghty, the plaintiff’s general practitioner, with the effect that the plaintiff’s personality has changed dramatically since 2000. He is not good humoured, is stressed, tired without physical cause, has suffered from personality change and anxiety, matrimonial dysfunction caused by psychological rather than physical factors and had suffered a reactive depression of moderate to severe nature which is ongoing for twelve years.
7.2 The court also heard from Dr. David Shanley, retired consultant psychiatrist who recounted that the plaintiff suffered from sleep difficulties, tiredness, and no libido which has a marked effect on his relationship with his wife (this was also confirmed by the plaintiff’s wife). Dr. Shanley diagnosed an adjustment disorder which is of moderate severity which he indicated was similar to Dr. Geragthy’s diagnosis and his depression was a reactive type and that there are ongoing psychological consequences. Since the plaintiff’s retirement in December 2011 from An Garda Síochána, he has being feeling better. The court also heard from Dr. Jean Lynch, Psychologist, from the Bullying Centre.
7.3 The defendant’s medical expert was Prof. Casey. As was stated by counsel for the defendants, Prof. Casey’s evidence was contingent upon what the plaintiff was saying is correct. Assuming that to be the case, Prof. Casey stated that in her belief, the plaintiff suffered “a mild adverse reaction”. In effect, she did not seriously differ from Dr. Shanley indicating that the plaintiff recorded a major improvement since his retirement. Prof. Casey agrees that in September 2012, she diagnosed him from suffering from the mild adjustment disorder and referred to his stress as being moderate.
7.4 The court accepts that the plaintiff suffered a significant though moderate psychiatric injury. In particular, the court accepts Dr. Shanley’s evidence of a reactive type depression which thankfully is easing after the plaintiff’s retirement. The plaintiff’s situation has not, however, fully returned to pre-2000 levels and in particular the plaintiff is suffering from ongoing matrimonial dysfunction. The court hopes and expects that this will not be an ongoing problem.
7.5 The defendants submit that the plaintiff merely suffered from an anxiety which resulted in a total of two weeks absence from work. The court does not believe it is fair to categorise the plaintiff as merely suffering from anxiety resulting in a two week absence from work. The reactive depression though only moderate was an ongoing continuous matter for approximately ten years until his retirement. The court does accept that apart from the two week absence, the plaintiff was able to do his work though clearly his enjoyment of his work was less than it would otherwise be as his function as a detective was curtailed especially by the loss of his firearm and of his permission to drive a garda vehicle.
7.6 The court believes that the appropriate sum for the damages for his personal injury due to his depression and stress as a result of the bullying as so found is a sum of €55,000 being damages both to the present and representing a small sum into the future.
8 Defamation
8.1 The court has held that there was defamation and libel of the plaintiff. The court holds, however, that the plaintiff has only established a very limited publication of the libel which was made to Inspector M. This libel was potentially extremely serious and indeed motivated by malice. However, Inspector M. readily accepted the plaintiff’s explanation that the plaintiff’s signature was forged and no serious damage ensued to the plaintiff’s reputation. The court does, however, take into account the nasty and indeed malicious nature of the action and in those circumstances and in view of the other findings of the court in relation to the plaintiff’s being bullied and harassed and in order to avoid any suggestion of double counting the court will award the plaintiff the sum of €25,000 under the heading of defamation.
9 Conclusion
9.1 Totalling the sum of €5,000 for special damages; €55,000 for damages for bullying and harassment and €25,000 for defamation, comes to the sum of €85,000 damages in total which I will award to the plaintiff.
McCarthy v ISS IrelandLtd (Trading as ISS Facility Services) & Anor
Bullying Vicarious
[2018] IECA 287 (15 August 2018)
Court of Appeal
Composition of Court:
Peart J., Hogan J., Whelan J.
Judgmentby:
Peart J.
Status:
Approved
Result:
Allow and set aside
THE COURT OF APPEAL
Neutral Citation Number: [2018] IECA 287
Record Number: 2014/1139
[Article 64 transfer]
Peart J.
Hogan J.
Whelan J.
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 13TH DAY OF AUGUST 2018
1. This is the plaintiff’s appeal against the dismissal of her personal injuries claim by the High Court (Kearns P.) by order dated the 11th December 2013. It is important to point out that the dismissal of the action did not occur at the conclusion of the plaintiff’s case on foot of any non-suit application made by the defendant. At the conclusion of the plaintiff’s case, counsel for the defendant simply indicated to the Court that the defendant was not calling any evidence.
2. At the relevant time the plaintiff was employed by the first named defendant as a cleaning supervisor at the Mid-Western Regional Hospital at Dooradoyle, Limerick. She claims that between May 2009 and February 2011 there were five separate incidents in which other cleaning staff whom she supervised, acted in an aggressive, threatening and abusive manner towards her, mainly by shouting and by other aggressive behaviour during the course of their employment, and over time thereby caused her such severe stress and anxiety (including post traumatic stress disorder), humiliation, pain and suffering that she was compelled to leave her employment. She alleges that following the first such incident she reported same to her employer, but that no particular action was taken to prevent a recurrence. She contends that by not taking any sufficient action following her complaint, and her subsequent complaints, her employer allowed a situation to prevail in her work place whereby the cleaning staff whom she supervised felt able to behave in this abusive, threatening and aggressive manner towards the plaintiff with no fear that there would be consequences for them.
3. It is the failure of the first defendant to have acted appropriately to prevent a recurrence following the plaintiff’s first complaint, and subsequent failures, that is alleged to constitute negligence on its part, whereby the plaintiff suffered personal injuries as a result of the particular incidents on a cumulative basis, and the atmosphere of intimidation that prevailed in her work against her, and which put her in fear.
4. The plaintiff accepts that each of the five particular incidents which she has recounted were perpetrated by different staff members, and that they were not acting in any coordinated way or in concert. She accepts also that a considerable time elapsed between each such particular incident. She accepts also that the first incident happened ‘out of the blue’ so to speak, and that her employer could not reasonably be expected to have anticipated or foreseen it. But, as I have said, the gravamen of her case against her employer is that having made a complaint to her employer in the aftermath of the first incident, combined with the failure to act even after subsequent complaints, no steps were taken to prevent a recurrence, and that this failure led to a culture in the workplace where aggressive, abusive and threatening behaviour towards the plaintiff, as their supervisor, was allowed to occur with impunity to the perpetrators, and that the incidents themselves and the atmosphere of fear and intimidation towards her led cumulatively to her suffering such fear, stress and anxiety that she was forced to leave her employment. That is the essence of her claim.
The five particular incidents:
5. The five particular incidents are listed below:-
(a) The first incident happened on the 28th May 2009. On that date Ms. J who worked as a cleaner under the supervision of the plaintiff, approached the plaintiff and accused her of having made complaints about her in a work audit. Ms. J was accompanied at the time by her husband. They both acted in a very aggressive manner towards the plaintiff. The plaintiff contends that this behaviour amounted to an assault. In particular the evidence was that it was Ms. J’s husband who, during the course of this encounter, pinned the plaintiff against a wall and threatened her. She was in fear that he would hit her. Ms. J’s husband was not employed by the first defendant. But the plaintiff contends that since Ms. J who was an employee was acting in concert with her husband, the first defendant is vicariously liable for the actions of Ms. J on the occasion. She reported this incident to her employer. She was so distressed by what had happened that she went on sick leave. She attempted to return to work in September 2009 but being still nervous and stressed she resumed sick leave. She did not hear back from her employer as to any steps taken on foot of her reporting the incident.
(b) The second incident occurred some seven months later on the 5th January 2010 when a male employee working under the plaintiff’s supervision shouted into her face, and behaved in an intimidating and threatening manner towards her. She was afraid that he was going to hit her. This is said to amount to an assault also. Again, she says that she reported the incident but heard nothing further about it.
(c) The third incident occurred five months later on the 30th June 2010 when another male employee shouted at her. This happened after the plaintiff as his supervisor had asked him not to enter the intensive care unit of the hospital because there was some infection there. He apparently responded to her request by shouting and roaring at her in public and behaved in a threatening and abusive manner. The plaintiff was very distressed about this incident also, and reported it. She says that she heard nothing further about it from her employer.
(d) The fourth incident happened on the 18th July 2010. On that date she had asked another male employee to clean a particular corridor and his reaction to that request was to roar and shout at her using abusive language, saying that it was not his job, and generally intimidated her. The plaintiff was caused great distress by this incident. She again reported the incident. Her evidence was also that on the day following this particular incident her superior asked her if she would take redundancy, and a few days later asked her if she was “one of the McCarthy Dundons” (a Limerick family notoriously associated with criminality in Limerick), and suggested that things were going to get very difficult for the plaintiff.
(e) the fifth and final incident occurred on the 15th February 2011 when the plaintiff was in the course of speaking to her manager about another employee whom she cold not find. It appears that while talking about this to her manager, that employee burst into the room and started roaring and shouting about the plaintiff. The manager told that employee that he was to do what the plaintiff said, but apparently he continued to roar and shout. The plaintiff again became very upset over this incident. She says that once again nothing was done about what had happened, and she heard no more about it from her employee.
6. It is the cumulative effect of these incidents upon the plaintiff’s mental health that is relied upon, rather than any one incident, combined with the fact that despite being made aware of what was happening and its effect on the plaintiff the defendant employer took no proper or appropriate steps as employer to prevent any recurrence. The plaintiff contends that if proper steps had been taken after the first incident, and after any subsequent incident she would not have been exposed to the aggression and intimidation that persisted in her workplace and would not have suffered injury to her mental health, and would not have been forced to leave her employment. It is in these circumstances that it is contended that the first defendant was in breach of its duty of care to the plaintiff to provide a safe place of work, and that as a result of such breach she suffered personal injuries, loss and damage.
7. Having heard the evidence the trial judge delivered an ex tempore judgment and dismissed the plaintiff’s claim on the basis that she had not made out her claim of negligence against the first defendant. Though not pleaded as a case of workplace bullying as such, the trial judge commenced his ex tempore judgment as follows:
“This is effectively a bullying in the workplace case and so one looks at a case of this nature for characteristics which go with bullying and which mark bullying out as a particular form of experience that a person has to go through. Markers for bullying might include, for example, repetition, something happening on a daily basis or even less frequently than that, a weekly basis, that a person has to endure. The duration of the particular treatment to which the person is subjected. Thirdly, one looks for indications of escalation of the activity because certainly once more one thing in life teaches is that bullies don’t stop, at the first sign of weakness, they on the contrary step up the pressure and increase it and usually look for a disparity in the relevant positions of power and strength of the two sides to the situation. So, for example, a teacher is in a stronger position to bully a pupil. An employer is in a stronger position to bully an employee. A senior employee is in a stronger position to bully a junior employee. As Mr Aylward quite properly pointed out that can flip over at time and we’re equally aware of teachers being mercilessly bullied by young pupils and he’s made the point, and I think a valid one, that a person in a supervisory capacity can in turn be bullied by those over whom they are supposed to exert control. That can often happen because in the view of those below that supervisor they may feel that they were the ones that should have been appointed to this particular job or for some other reason.”
8. Having commenced his remarks in that way, the trial judge then outlined the five incidents referred to. He referred to the fact that each incident was perpetrated by a different employee and referred to the temporal gaps between each such incident. He referred to the first incident being ‘out of the blue’ and one that the employer could not have anticipated, and that it had been investigated and that Ms. J had never again approached the plaintiff.
9. The trial judge stated that he could not see how any careful employer could have predicted that an episode such as the February 2010 incident would happen. In fact it can be inferred from his remarks that he considered that none of the particular incidents cold reasonably have been anticipated by the employer given the spontaneous nature of what occurred on each occasion.
10. The trial judge went on to state:
“So, there were these four/five episodes with significant intervals between them and they are brought together by the plaintiff in this set of legal proceedings to argue that here was a situation of, if you like, systemic bullying in the work place. But that case it seems to me is totally undermined by the plaintiff’s own evidence. I must in a sense pay tribute to Ms. McCarthy because I felt that she was a very genuine person and she was doing the best she could and honestly she has misconstrued what happened in work totally. She very fairly admits in her opinion, and she was there and she knows the situation, that there was absolutely nothing her employers could have done about any of these incidents, all of which I am satisfied cannot be taken as having occurred in the course of the respective employee’s employment. They were not part of their ordinary work or foreseeable that any employee would have behaved in this particular way.
Secondly, she accepts that there was no question of any of these people acting in concert or acting in common cause against her. There is no evidence of any feud going on in the work place. It is a very large work place with thousands of employees and so it would have been, I would have thought, fairly easy if there was some sort of conspiracy to carry out this sort of shameful activity that I would have heard about it.
But on the contrary, and that would have been indicative of a culture of bullying being tolerated at the work place and I discussed with Mr Aylward how history is full of examples of that sort of culture of bullying perhaps even being encouraged in certain organisations or certainly occurring and one can think of many instances some of which I discussed with Mr Aylward. Even with the thousands of employees working in this particular organisation, not one other single employee has come forward or has been identified as having been bullied or bring forward similar complaints or identifying a group of people who were carrying out bullying and I’m left then in a situation where there is a serious, I won’t call it serious, but a succession of unrelated events to a greater or lesser degree were upsetting from the plaintiff’s point of view.
Now, ordinary human life is full of upsets large and small … which don’t necessarily give rise to legal liability or responsibility and again one has to ask the question: in respect of any one of these incidents what could her employers reasonably have done? Were they supposed to bring all three and a half employees in one by one into some sort of a room, close the door, sit the person down and lecture them about this particular employee had reacted in a particular way to an episode and put them on notice of a warning and possible dismissal if anything of the sort occurred again? I mean no work place could operate on that sort of basis.
I am satisfied really at the end of the day that this was an unfortunate episode. That the plaintiff herself does not associate it in any way the fact that her marriage broke up at around the time that these particular episodes. So I am sure she certainly doesn’t believe there is any connection, but the particular incidents themselves do not strike me as incidents which would in the ordinary course cause a person to suffer as the plaintiff claims to have suffered in this case. She may have been particularly vulnerable but there was no evidence of that over the 25 years during which she was perfectly happy at her place of work. So while it has all been a very unfortunate experience for the plaintiff, I cannot see and I could not possibly impose some sort of legal liability to pay the huge sums of damages and compensation being claimed on behalf of the plaintiff in this case, and I must dismiss the claim.”
11. The starting point of the appellant’s submissions is that the trial judge erred in characterising her claim as one of work place bullying, and that he erred in dismissing her claim on the basis that the indicia of work place bullying had not been established by her.
12. The plaintiff submits that she never pleaded or presented her case as one of work place bullying, but rather one of negligence on two different bases.
13. Firstly, she alleged individual tortious acts by employees committed by them in the course of their employment, which individually and cumulatively caused her injury, and for which the employer is therefore vicariously liable.
14. Secondly, she alleged negligence by the employer by failing to provide a safe place of work. The case for a failure to provide a safe place of work relies on the fact that having been informed of the first incident, and each later incident, and the anxiety and distress which each caused the plaintiff, the employer took no reasonable and effective action to prevent a recurrence. It is submitted that by this failure the employer negligently permitted an atmosphere or culture to exist in her work place whereby cleaning staff over whom the plaintiff was the supervisor felt free to speak and act aggressively and abusively towards her without fear of sanction or other adverse consequences. In other words this tortious type of behaviour by other cleaning staff was tolerated in the work place by the employer, and therefore deemed by staff to be acceptable.
The individual acts and vicarious liability
15. The appellant submits that by concentrating in his analysis of the plaintiff’s claim on the question of bullying, and finding that the indicia of bullying were not established by the evidence, the trial judge failed to carry out any proper analysis of the question of the employer’s vicarious liability for the individual tortious acts of the employees. It is submitted that the evidence of each of the five acts supports a conclusion that each act constituted an assault committed in the work place and in the course of their employment. As to the conclusion that each individual act complained of by the plaintiff was ‘out of the blue’ and not foreseeable by the employer, the plaintiff submits that as a matter of law the question of foreseeability on the part of the employer does not arise, since vicarious liability is a form of strict liability – seeO’Keeffe v. Hickey[2009] 2 IR 302, per Hardiman J. and Fennelly J.
16. I am not satisfied that as a matter of law the employer in this case can be held vicariously liable for the five individual acts which the plaintiff complained of. Each act does amount to a technical assault given the aggressive way in which she was shouted at and abused, but I would not hold that these acts are committed in the course of the perpetrator’s employment in the sense in which that phrase should generally be understood. I say that despite the undoubted fact that the plaintiff was in a supervisory role over the employees in question when these events occurred. The acts complained of are to be contrasted with the more usual situation of vicarious liability where during the course of carrying out the work for which the employee was employed he/she performs that work in a negligent fashion and causes some third party to sustain an injury. In the context of the present case by way of example, clearly if one of the cleaning staff, having washed a floor in the hospital, left the surface wet and without any warning in that regard to the public or his fellow workers, and somebody then slipped and fell on the wet surface, there could be no question but that the employer would be liable for the negligent act of the employee. That is a classic case of vicarious liability in which the question of foreseeability on the part of the employer is irrelevant, and would not have to be established.
17. But this is not such a case. In each of these incidents the employee in question simply spoke and behaved aggressively both verbally and to an extent physically but short of a physical assault as such, towards the plaintiff. Although the incidents happened while both were at work and in the work place, it was not behaviour committed in the course of employment. It is the sort of behaviour that would entitle the employer to invoke some form of disciplinary action, commencing perhaps with a warning, but it would in my view be stretching the concept of vicarious liability beyond its intended limit if an employer was to be found vicariously liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work, even where that outburst has caused distress and anxiety to its victim.
18. In fact, in the present case, the plaintiff does not make her case on the basis that each individual act complained is one for which she seeks to be compensated by her employer. The Court would have to consider the matter very differently if, for example, the first incident was the only incident that occurred and the plaintiff sought damages from her employer for that particular incident. The same goes for each subsequent incident. But, as I have said, that it not the basis on which she brings her claim. It is on the basis of the cumulative effect of these five separate incidents on her mental health.
19. I would dismiss her appeal in so far as she relies upon vicarious liability for these incidents.
The failure to provide a safe place of work
20. All employers owe a duty of care to their employees while they are at work. This is a duty owed both under the common law, and as mandated by many regulations governing working conditions and safety in the work place in all its many and varied forms.
21. The duty of care under the common law includes the general obligation to provide a safe place of work. What comprises the concept of safety in any particular case will vary depending on the nature of the work and of the work place. Broadly speaking where it is reasonably foreseeable by the employer that when carrying out their lawful duties in the course of their employment there is a foreseeable risk to which the employee will be exposed, the employer is under a duty to take all reasonable steps to protect the employee against it so that no injury is caused. All work places have risks that must be anticipated and protected against by the employer. Those risks will pose a danger to some employees in a particular work place and not to others. For example, on a building site the risks to which a construction worker is exposed while working at a height are very different to those to which a person whose work is confined to the office will be exposed. The employer must consider each and take reasonable steps to protect against the risks posed to each category of employee.
22. In this case the plaintiff was a supervisor. That role is a particular role in the work place which is different to the role of those over whom she supervises, even if some of her work involved actual cleaning. She is not the employer of those whom she supervises, yet she has authority over them. She can both direct the work they are to do, and check that it has been done correctly. It is the sort of role that can potentially bring her into conflict with those under her supervision. I would consider it reasonable that an employer of such a supervisor should have a particular duty of care towards a supervisor, and to anticipate that such conflict might occur, and to have procedures in place to minimise such conflict and to deal with it when it occurs so as to prevent as far as reasonably possible any recurrence.
23. The evidence of Mr Brian Aylward called by the plaintiff was important evidence in this context. He has over 30 years’ experience in the industrial relations field, and he prepared a report in relation to the plaintiff’s complaints. He was critical of the company’s failure to act on foot of the complaint first made by the plaintiff in May 2009. His view was that this complaint should have alerted the employer, especially when soon afterwards the plaintiff had to go on sick leave for some weeks. He referred to the company’s own manual in relation to how complaints should be addressed. In relation to the manual, it is worth quoting a lengthy passage from his direct evidence as it appears in the transcript (Day 2, p.61):
“The company booklet is quite good. There is a paragraph there to which I direct your attention and I would argue that it wasn’t fulfilled at all, but also normal good practice wasn’t fulfilled. It says:
‘The complainant should be subject to an initial examination by a member of management who can be considered impartial with a view to determining an appropriate course of action …’.
Now it seems to me that that probably did happen. Mr Sweeney in fact did that.
‘… An appropriate course of action at this stage, for example, could be exploring a mediated solution or a view that the issue can be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation’.
Insofar as I am aware the company did absolutely nothing after Mr Sweeney presented them with the statements. They did not interview people and they did not do what would be the normal thing in a situation like that. They did not offer counselling after the incident. They did not call the staff together and point out to them the inappropriateness of their actions, of actions of this nature. They just did nothing. It died. They left it rest and this is why I asked, if I could go back, but what that does is inculcate a culture in the organisation where bad behaviour of some sort is allowable. So in other words you can argue, and it is for the Court obviously to decide, that this allowed the culture to develop where employees could abuse their supervisors. Now you’ve asked about repeat, and your good friend also asked about once off incidents, and they are clearly once off incidents, but bullying and harassment, and harassment is once-off incident, it needs only one incident of harassment to be deemed harassment but bullying is repeated. What the codes allow for is that they accept there can be group bullying and a number of people in this instance clearly bullied the plaintiff.”
24. Having regard to the fact that there was no evidence of any connection between the five separate incidents, Mr Aylward went on to state;
“I would accept there is no connection, but I would just say if there is a connection there is connection of the culture. I do not think Mr so-and-so conspired with Mr so-and-so to do it, they just knew that they could get away with it. If the company, as I would see it and some of the good companies have it in their procedures, if after … the first incident … a warning sign comes in, they know the person is going to be more vulnerable, so they have got to be more careful about how she is treated and whatever. The company in this instance, as far as I can see, in fact stripped her of a number of her entitlements when she came back to work. So in other words, instead of providing support which you would expect, they actually moved to almost discipline her. They removed her phone and I think she has described what they did to her and they allowed nothing to happen. If the company had offered counselling or if they had spoken to the staff, which they should have done, and they should have also spoken to the staff on the second occasion. I would think that would have stopped the incidents. There seems to have been no effort put into educating the staff as to the type of behaviour required from them.”
25. At that point, Mr Aylward was cross examined in relation to his reference to there being “a culture” within the company of the staff knowing that they could get away with the sort of behaviour complained of. He had to accept that he had not carried out any particular investigation as to whether there was a culture of bullying as such at the hospital. He had not tried to find out how many people had been bullied, how many claims might have been made, or how many people had complained about a culture of bullying. The trial judge intervened also to the same effect.
26. In my view the trial judge was correct to reject the evidence offered as to a culture of bullying in the work place. There was insufficient evidence to establish such a culture. In any event, the plaintiff did not plead her case as one of bullying as such, and neither did counsel open the case as being one of bullying in the work place.
27. Neither in my view did the question of vicarious liability arise in relation to each individual act of aggression towards her that the plaintiff complained of. The first incident was ‘out of the blue’. There is no reason why the employer should be held to be vicariously liable for what occurred either at the hands of AJ herself, or more seriously at the hands of her husband/partner who was not himself an employee. The other four incidents were quite minor outbursts, which perhaps, while not to be condoned, can inevitably be expected to happen from time to time in any work place. They do not necessarily give rise to a claim against the employer, even though they should if reported give rise to some sort of investigation and appropriate action by the employer to try and prevent a recurrence.
28. In his opening of the case, counsel referred to each separate incident and the fact that each had been reported, and that the employer had taken no action. In his opening of the case counsel stated that the employer was “liable [for their neglect in] not providing and maintaining a safe place of work and for not doing anything to ease the situation or to calm the plaintiff’s fears in any way”.
29. The report prepared by Mr Aylward addressed the case not only in terms of harassment and bullying, but also as to the employer’s duty of care to provide a safe system and place of work, and to prevent injury to its employees, including to the mental state of employees which can be adversely affected by stress. He was critical of the company’s failure to investigate the plaintiff’s complaints. He considered that to constitute a breach of its obligations under health and safety legislation. He also referred to case law regarding the scope of the employer’s duty of care to provide a safe system of work, and to the potential liability that employers have in relation to work related stress, and that this duty extends also to the mental health of the employee. He referred to cases which have held that where an employee shows signs of stress in the course employment, the employer may be found negligent in failing to take appropriate steps to eliminate the cause of the stress
30. In his report Mr Aylward listed twelve failures on the part of the employer. Some related to bullying. But the following are relevant to the breach of the duty of care by the employer, which is the basis on which the case was pleaded and run by the plaintiff:
• The company did not seem to have a policy for dealing with allegations of assault.
• The company did not investigate the alleged serious assault by the staff member nor did it invoke its disciplinary procedures.
• The company did not investigate the alleged serious assault by a member of the public who was a spouse of the above staff member.
• The company did not investigate a further threatened assault by a male employee.
• The company did not issue any guidelines to staff after this incident warning them of the seriousness of issues of this nature and the consequences.
• The company did not put in place a protocol for dealing with assault and threatened assault.
• The company did not monitor the situation post this incident and did not provide assistance to the plaintiff on her return to work. At this stage the company should have seriously considered giving the plaintiff a personal alarm.
• The company does not seem to have an Employee Assistance Programme (EAP) in place for dealing with work related stress. The company, by changing the plaintiff’s terms and conditions of employment when she returned to work after the alleged assault almost seemed to be taking disciplinary action against the plaintiff rather than investigating her complaint and supporting her in a difficult situation.
31. I have referred to the fact that at the conclusion of the plaintiff’ case the defendants called no evidence. In fact it is clear that there was never an intention to do so. At the conclusion of the opening of the plaintiff’s case the trial judge in fact inquired of counsel if the defendants were going to call evidence, and was informed that they did not intend to. There was therefore no evidence to contradict the evidence of the plaintiff and witnesses called by her. In particular there was no evidence to contradict the evidence of Mr Aylward and what he said both in his evidence and in his report to which he spoke, and was cross-examined. He did not speak only in relation to bullying and harassment, but he also addressed the issue of a breach of the employer’s duty of care to the plaintiff by failing to take any proper steps to investigate and address the incidents about which she complained and which clearly caused her fear, stress and anxiety. Nothing was done to protect the plaintiff who was in a supervisory role, which role, by its very nature, may lead to confrontation with those who are being supervised.
32. As the learned authors McMahon & Binchy point out inLaw of Torts(4th edition) at p.700 the duty of care owed by an employer to an employee varies according to the employee’s particular circumstances, and that there is no single duty of care laid down by the courts. The extent and nature of the duty of care will vary depending on the nature of the employee’s employment. The authors reference the judgment of Griffin J. inDalton v. Frendo, 15th December 1977, Supreme Court where at p. 5 thereof he stated:
“Actions of negligence are concerned with the duty of care a between a particular employer and a particular workman … that duty may vary with the workman’s age, knowledge and experience”.
33. The duty of care will in my view also comfortably take account also of the nature of the employee’s job and the relationship thereby existing between her and other employees. In other words, in the present case, one cannot overlook the fact that the plaintiff’s job was as supervisor of cleaning staff in a busy hospital. It was her job to make sure that those under her supervision did the work for which they were employed and did it to the required standard. In a hospital environment, I need no expert evidence to be satisfied that in that environment a very high standard of cleanliness must exist at all times. In my view in such circumstances, and where the plaintiff made complaints to her employer about incidents of hostility, aggression, and abuse by those whom she was supervising, the employer owed a duty of care to her to take some reasonable steps to address what occurred with a view to minimising the chances of recurrence. The duty of care does not extend to ensuring that no recurrence ever takes place. That would be too high a standard to be expected. But they were obliged to takereasonablesteps to protect her from a recurrence where it was evident to them that these were a cause of significant stress, anxiety and fear to the plaintiff. In my view the evidence establishes that they failed to do so. While AJ was spoken to, no other step was taken, and certainly the plaintiff was not informed of any steps taken, and was therefore permitted to remain in a state of anxiety over a considerable period of time, and despite making a further four complaints. Mr Aylward’s uncontroverted evidence is that there were no policies and procedures in place to deal with issues of this nature. By these failures, the employer breached its duty of care to the plaintiff by failing to provide the plaintiff supervisor with a safe place of work, taking account of her particular role as a supervisor, and it is liable in negligence for the injuries, loss and damage that are attributable to that negligence.
34. The employer has adduced no evidence to the contrary. In my view the trial judge erred by considering only the question of bullying in the workplace. While he was, in my view, correct to reject the claim based on that ground, and in relation to vicarious liability in respect of each individual act complained of, he erred by failing to deal with the claim on the basis of a failure by the employer to provide a safe place of work for the reasons stated.
35. It is important to emphasise that this is not a case where the defendants made an application for non-suit at the conclusion of the plaintiff’s case. It chose at the outset not to call evidence. At the conclusion of the plaintiff’s case it simply indicated that it would not go into evidence. In such circumstances it is unnecessary to return the case to the High Court on the question of negligence and this Court may legitimately find that the trial judge fell into error in the manner indicated and conclude that the employer was negligent.
36. I should add perhaps that counsel for the plaintiff accepted that the plaintiff’s case was in reality only against the first named defendant and not against the HSE which owns the hospital. There were no costs implications by so accepting since both defendants were represented by the same legal team.
Conclusions
37. I would therefore allow the appeal, and would remit the case against the first named defendant, the employer, to the High Court for a determination of the issues of causation and damages.
Sweeney -v- Ballinteer Community School
[2011] IEHC 131 (24 March 2011)
JUDGMENT of Mr. Justice Herbert delivered the 24th day of March 2011
1. Between September 2005 and September 2006, a series of decisions affecting the plaintiff, approximately six in number were taken by Dr. C. as principal teacher of a large community college (hereinafter referred to as B.C.C.), in which the plaintiff was a senior member of the teaching staff. It is not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed pursuant to the provisions of the Code of Practice of March 2003, for “dealing with complaints of bullying and harassment of staff in community and comprehensive schools”, subscribed to and relied upon the plaintiff as a member of the Teachers Union of Ireland and, by the Board of Management of B.C.C. found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C.. This finding was sustained by an Appeal Board duly constituted under and in accordance with the terms of the Code of Procedure, on foot of the plaintiff’s appeal dated the 9th March, 2010, from the decision of the Investigating Officer. I have already ruled during the course of this action that to the extent that these decisions of Dr. C. were the subject of inquiry by the Investigating Officer and subsequently by the Appeal Board, this Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.
2. However, these decisions and the facts surrounding them have a residual importance to the present case. The plaintiff did not accept these decisions of Dr. C. and, in each case, to re-echo her own words under cross examination, “went beyond and outside him”. In so doing she knew that she was taking, what she herself described, as a “drastic step”. She accepted in evidence that on the 2nd September, 2005, she told Dr. C. that unless she received what she believed was promised funding from B.C.C. for the second year of her four year degree course in counselling and psychotherapy, “she would do something drastic”. In cross examination the plaintiff denied that she had threatened to take sick leave for a year and insisted that by saying that she “would do something drastic” she meant that she would, “go beyond and outside him”.
3. It is not for this Court to decide in the present case whether or not the plaintiff was entitled to “go beyond and outside” Dr. C. in relation to these decisions or, even if such recourse existed whether she employed correct procedures in availing of it.
4. However, what is important in my judgment to the proper understanding and determination of this action is that these decisions of Dr. C. and the plaintiff’s reaction to them resulted, I find, in escalating mutual distrust between them as disagreement followed disagreement. Eventually, I find that the plaintiff came to believe that every action or omission on the part of Dr. C. whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.
5. These most regrettable circumstances caused her on the 4th October, 2006, to make a formal complaint of bullying and harassment through a firm of solicitors to the Rev. Chairman of the Board of Management of B.C.C.. I accept the evidence of the Rev. Chairman that this was the first he had heard of the allegation. He was very shocked and he took legal advice before acknowledging this letter by a letter dated the 16th October, 2006. He accepted that he had been aware since October 2005 that the plaintiff and Dr. C. had not been speaking to each other but he told the court that this was not at all unusual amongst teachers. I find that prior to this, in May and June 2006, three teachers on the staff of B.C.C. who were the then serving committee of the Teachers Union of Ireland in B.C.C. had attended a number of meetings with Dr. C. in which they had put to him the plaintiff’s concerns about his behaviour towards her. I am satisfied that at least one of these meetings Dr. C. behaved very aggressively towards a female teacher almost resulting in physical intervention by the two male teachers present. It is not necessary for the purpose of deciding the present action to determine whether Dr. C. is correct in his recollection that no express allegation of bullying or harassment by him of the plaintiff was raised at any of these meetings and accordingly that the contents of the letter of the 4th October, 2006, came as a very great surprise to him. By a letter dated the 7th November, 2006, Dr. C. denied these accusations and furnished particulars to the Board of Management of B.C.C. of what he alleged was bullying of him by the plaintiff.
6. Following a considerable exchange of views in correspondence, which on occasion became unnecessarily acrimonious, on the 13th November, 2006, a practising junior counsel with extensive experience and with an area of specialisation in the Law relating to Education in Ireland was appointed under the Code of Practice as “Investigating Officer” to inquire into these very serious complaints by the plaintiff of bullying and harassment on the part of the Dr. C.. In furnishing very belated details of her claim to the Investigating Officer and to Dr. C. in April 2007, the plaintiff claimed that she had been bullied and harassed by Dr. C. since 1992. However, at the hearing of the instant case, she accepted that this alleged behaviour on the part of Dr. C. only commenced in October 2005, following her appeal against the filling of four “A” posts of responsibility in B.C.C.. The Investigating Officer furnished her report on the 26th October, 2007 and a copy was furnished to the plaintiff.
7. At this point a few biographical details of the plaintiff and of her career are in order. The plaintiff was born on the 8th July, 1954. She separated from her spouse after, what I was informed, was for her a very traumatic marriage followed by a very difficult court separation. She has two children who are now young adults. She qualified as a teacher in 1975. After qualifying she taught in Dublin until 1979 and in Lisbon from 1979 to 1980. In 1980 she became a permanent member of the staff of B.C.C.. In 1993, Dr. C. was appointed principal of B.C.C.. In 1999 the plaintiff became Home-School Liaison Coordinator at B.C.C.. In the circumstances of this case I find it to be of considerable significance that the duties of the holder of this important and responsible post were spelled out in the “job description” as being, inter alia, “to consult, liaise and collaborate with the Principal” of B.C.C.. It is further of significance that the plaintiff told the court that she regarded these as merely guidelines and not necessarily as binding on her. In May 2002, the plaintiff was elected to and served a three year term as a member of the Board of Management of B.C.C., as one of two teacher representatives on that Board. In October 2004, she commenced a four year degree course in counselling and psychotherapy. This involved some limited absences from work. Over the years from 1980 onwards the plaintiff had, through evening courses, obtained diplomas in work related skills such as drugs awareness and personal development counselling. In September 2005, she was appointed learning support teacher at B.C.C.. I find that the evidence clearly establishes that up to this point the plaintiff was regarded by her colleagues at B.C.C. including Dr. C. as a most dedicated and progressive teacher who had done enormous work in extending the educational services provided by B.C.C. to deprived families and especially to children at risk.
8. Unfortunately, all of this came to an end in October 2005, when the plaintiff was unsuccessful in her application for one of four category “A” posts of responsibility within B.C.C.. I find that the plaintiff consider it most unjust that she should have been passed over for these posts having regard to her qualifications, her seniority and her record of exemplary and innovative service as Home-School Liaison Coordinator. She attributed her lack of success to the malign influence of Dr. C.. I accept the evidence that Dr. C. took no part whatever in the actual decision making and, had no vote in the selection of the successful candidates. I accept that he was present at the meetings of the Appointments Committee as secretary and to keep the record. However, there was compelling evidence before the court which I accept that even if Dr. C. took no part in the selection process he totally approved of the result, which he did not wish to see changed. He then made what can only be described as a series of calamitous blunders which would cause a reasonable observer, reasonably to conclude that he was determined that the plaintiff would not under any circumstances be awarded one of these category “A” posts of responsibility in B.C.C.:-
He advised the plaintiff incorrectly, though I am quite satisfied not maliciously, that she could not appeal this decision.
On the 9th November, 2005, a letter under his signature was sent congratulating the successful applicants when, I am satisfied he knew of the plaintiff’s appeal against the decision. I find his explanation for this action unconvincing. In a letter of equal date he apologised to the plaintiff, but then cast doubt on the sincerity of this apology by notifying these teachers of meetings involving “A” post issues on the 16th November, 2005, and the 23rd November, 2005.
He prevailed on a member of the teaching staff of B.C.C. who had been a friend of the plaintiff for more than twenty years to endeavour to persuade her to withdraw her appeal and to apply for a “B” category post which he indicated she could be assured of getting. This offer was very properly declined by the plaintiff. This other teacher, very moved, told the court that she realised in hindsight that she should not have done this as it would probably result, as it did in the loss of the plaintiff’s friendship.
9. I find on the evidence that the plaintiff, who with very good reason, regarded herself as a very senior and experienced teacher who had contributed greatly to the work of B.C.C. felt deeply hurt, disappointed, humiliated and betrayed by these actions of Dr. C.. I find that the plaintiff reacted by deciding to have as little personal contact with Dr. C. as possible. On the 30th October, 2005, the plaintiff appealed successfully against the procedure adopted in filling these “A” posts. The plaintiff was not successful in obtaining one of these posts in the subsequent re-selection process. For his part, I am satisfied, that Dr. C. perceived the plaintiff’s appeal against the “A” post appointments, which I am satisfied on the evidence was entirely unprecedented, as a further going “beyond and outside him” by the plaintiff and, as a challenge to his authority as Principal of B.C.C.. I find that his reaction was to behave thereafter towards the plaintiff in a hostile and dismissive manner and to disparage and marginalise her in the eyes of other teachers and members of the non teaching staff at B.C.C.. Unfortunately also, those colleagues whose promotions to “A” posts of responsibility was jeopardised by the plaintiff’s appeal and their friends on the teaching staff also ostracised the plaintiff.
10. Specific events of which the plaintiff complains and which occurred between October 2005 and September 2006, – the music examination incident; being urgently summoned to Dr. C.’s office during an inspection by an Inspector of the Department of Education; unwarranted requests to attend at the college office and, especially the forcing open of the door of her office and the removal to a different room of her effects including very confidential files in July 2006, during the summer vacation, – an action which elicited a letter of complaint from the college committee of the Teachers Union of Ireland dated the 11th December, 2006, – all served to worsen this totally undesirable state of affairs.
11. I do not accept the bona fides of the explanation offered for the admitted entry by one of the college caretakers, acting on the instructions of Dr. C., into the plaintiff’s office in B.C.C. by slipping the lock with a knife and, the moving of the contents of that office to the Home-School Liaison room. Absent any emergency, ie. fire or flood or, faced with an inability after reasonable and proper attempts to contact the plaintiff and a pressing need in the interests of the college to have the rooms interchanged, what was done on this occasion on the instructions of Dr. C. was high handed and inexcusable. The fact, which I accept, that the college caretaker moved everything very carefully and put everything in exactly the same position in the other room and did not open anything does not mitigate the enormity of this conduct in the least. Neither does the fact that the other teacher made no complaint or that the plaintiff was in any event returning to the Home-School Liaison room at the start of the new term.
12. In addition, the plaintiff in retrospect, now regarded the September 2005, problem in securing what she regarded as promised funding by B.C.C. for the academic costs of the second year of her degree course in counselling and psychotherapy, as yet a further example of harassment and bullying of her by Dr. C.. The Investigating Officer and the Appeal Board appointed and constituted in accordance with the terms of the Code of Procedure held that these events were not shown to have involved bullying and harassment as defined in the Code. It is there defined as a, “destructive and malicious attempt to target a particular individual”. I have already ruled that so far as these events are concerned the plaintiff is bound by these findings of the Investigating Officer and the Appeal Board which, if the issue had fallen to be determined by it, are in accordance with the evidence led before this Court.
13. As almost invariably occurs in such divisive situations some teaching staff members of B.C.C., some members of the Board of Management of B.C.C. and, even some persons from outside B.C.C. who in the course of their official duties became involved in these events, came to take a partisan stance in favour of the plaintiff or of Dr. C.. I found the evidence of a number of witnesses in this case to be unreliable and therefore unhelpful for this reason.
14. Between the 31st August, 2006 and the 27th March, 2007, the plaintiff was absent from work and furnished each week a medical certificate from her General Medical Practitioner, Dr. Philip McMahon, that she was suffering from work related stress. The quite extraordinary manner in which these certificates were furnished, – they were found by the clerical officers each Monday morning pushed under the door of the general office and not given or sent to the Deputy-Principal the person entitled to require and to receive them, – demonstrates in my judgment the continuing concern on the part of the plaintiff to avoid any risk of having to communicate personally with Dr. C., even to the extent of refusing to furnish these very important documents from her own perspective directly to management. The clerical officers further informed the court that each Monday morning a man or a woman would telephone the general office and state that the plaintiff would be absent from work that week. These callers never identified themselves to the clerical officers.
15. I find utterly indefensible, the manner in which the plaintiff chose to return to work at B.C.C. on the 28th March, 2007. She must have realised that this was bound to be seen by Dr. C. with every justification as a calculated and wholly deliberate insult to him as Principal of the college. I accept the evidence of the Rev. Chairman of the Board of Management of B.C.C. at the time, and, the evidence of the present Chairperson of the Board who between them have each 30 years experience in community/comprehensive schools and large private schools that the manner of the plaintiff‘s return to B.C.C. after an absence of 209 certified days was “unbelievable and totally unacceptable”. On the 27th March, 2007, the plaintiff’s present Solicitors acting, one must infer on her instructions or with her consent, sent by Email a letter to the Rev. Chairman of the Board of Management of B.C.C. at his private address notifying him of her intention to return to work on the following day. I accept the evidence of the addressee that he did not receive this communication until after the plaintiff had in fact returned to work. By a letter dated the 12th April, 2007, he wrote to the plaintiff’s Solicitors notifying them of this and asking why no notice of her intended return to the college had been given to Dr. C..
16. I find on the evidence of Dr. C., the former and the present chairpersons of the Board of Management of B.C.C. and the Deputy-Principal of B.C.C. that Dr. C. was entitled to receive at least some days advance notice that the plaintiff intended to return to work on the 28th March, 2007. I find that he was in fact entirely unaware that she had done so until they met accidentally in a corridor some 30 minutes, on her own evidence, after she had entered the college. On the balance of probabilities I am prepared to find that this extraordinary behaviour on the part of the plaintiff was not, as Dr. C. perceived it, a conscious and deliberate attempt on her part to insult him and to undermine his authority as Principal of the College but was a further indication of her anxiety about communicating with him. In my judgment her failure to notify D. C. in advance of her intention to return to work is not explained or excused by her having proffered a medical certificate of fitness to return to work and a further certificate from Dr. McMahon covering her absence from work in the previous week, to the Deputy-Principal in the staff room earlier that morning and, being told by him to give them in at the office later in the day. I am satisfied on the evidence that apart from her failure to give proper notice to Dr. C. the plaintiff’s return to work did not in fact give rise to any staffing or rescheduling difficulties in the college on that day.
17. I accept the plaintiff’s evidence that Dr. C. said to her, “What’s this, what are you doing here, who knows you are back, did you inform the Board of Management”. There can be no doubt but that Dr. C. was entitled to put these questions to the plaintiff and even though the manner in which they were put may have been lacking in diplomacy and somewhat brusque, nonetheless I do not consider that in the extraordinary circumstances it amounted to bullying or harassment of the plaintiff. I am prepared to accept the plaintiff’s evidence that Dr. C. spoke loudly on the occasion and even turned red in the face, even though I have had an opportunity of closely observing him in various circumstances throughout the trial of this action and I never noticed him becoming red in the face. However, there was evidence which I accept, from a number of teachers who as members of the Teachers Union of Ireland had occasion to become involved in these differences between Dr. C. and the plaintiff, that on a number of occasions in meetings with Dr. C. he behaved with considerable and in their opinion unwarranted aggression towards them. However, unlike the case of the plaintiff, these exchanges all appear to have ended amicably and with handshakes all around. Given the sudden unexpectedness of his encounter with the plaintiff, his immediate assumption that she was back at work and, his almost certain anger and resentment at not having been notified in advance by the plaintiff that she was coming back to work, I think it not all unlikely that Dr. C. spoke loudly and aggressively as the plaintiff alleges. I do not however, accept that he became physically aggressive and, “came right up against her” as she claimed in her evidence. I find this to be improbable. In describing the difficulties which arose in September 2005, in relation to the provisions of funding for the second year of her degree course, the plaintiff claimed that during a meeting with Dr. C. in his office, he had become aggressive, had flung down his keys, had jumped up from the table, red faced and with eyes blazing and had invaded her body space. However, she made no complaint about this alleged behaviour at the time. In fact she agreed that things were good with Dr. C. at that time. On the 28th March, 2007, the confrontation with Dr. C. had occurred in an open corridor in what appears to have been the most public part of the College, where everything occurring was capable of being observed by other teachers, non teaching staff, pupils or even parents of pupils. Regardless of how he may have felt on the occasion, I do not regard it as credible that Dr. C. if he had any thought at all for his position as Principal of B.C.C. would have behaved in such a place in the manner suggested by the plaintiff.
18. The plaintiff gave evidence that her answer to these questions by Dr. C. was to say “I am not talking to you unless someone else is present”. She explained this answer by telling the court that she needed another person to be present so that person could be a witness to what Dr. C. was saying and doing as he would later deny both. The plaintiff denied that this was a pre-meditated response on her part. I am unable to accept this. The evidence adduced in relation to other incidents after the 28th March, 2007, together with this incident satisfied me that the plaintiff returned to B.C.C. with a plan to avoid contact with Dr. C. wherever possible and where not possible to stand up to him and insist that any communication between them take place in the presence of some third party acceptable to her. I find it also of significance that this incident was immediately followed by a letter from the plaintiff’s solicitors to the Board of Management of B.C.C. dated the 30th March, 2007.
19. After this exchange the plaintiff told the court that she noticed that the door of the business studies room, about ten feet away, was open. She entered this room where a male colleague, (and one of the Teachers Union of Ireland College Committee), was teaching a class. She told the court that her purpose was to ask this teacher to watch while she went down the corridor as she felt stressed and afraid. I am unable to accept that this as the reason why the plaintiff went into her colleague’s room. I am satisfied that she went there, not as Dr. C. perceived it to convey negative information about him in front of a class, but pursuant to her plan to involve a third party immediately in all confrontations which she might have with Dr. C.. I am satisfied on the evidence that this colleague was discomfited by the plaintiff’s sudden intrusion into his class and was most anxious that she should not linger in the room. I accept this teacher’s evidence that the plaintiff was quivering and appeared to be fighting back tears and had said to him, “He is at me again, its happening again”. I also accept this teacher’s evidence that as they were speaking a knock came to the door and Dr. C. put his head into the room, beckoned this teacher over to the door and said to him “You cannot have people invading your room, you’d want to look after yourself”.
20. I am satisfied that this teacher, who had been a member of the Teachers Union of Ireland Committee that had spoken to Dr. C. in 2006, on behalf of the plaintiff, reasonably and rationally interpreted this statement by Dr. C. as a threat, that he would suffer some detriment for speaking to the plaintiff and not insisting that she leave his room immediately. I find that Dr. C. had full authority to circulate a notice to all the teachers that they should not enter a colleague’s classroom while a class was in progress. I am satisfied that on this occasion Dr. C. was referring solely to the plaintiff whom he disparagingly described as having “invaded” this other teacher’s classroom. I find that this intervention at this time and in these terms by Dr. C. was a destructive and malicious targeting of the plaintiff and amounted to bullying of the plaintiff within the definition of the March 2003 Code of Practice to which both Dr. C. and the plaintiff had subscribed and had invoked. But apart altogether from that definition in my judgment these words were hostile, offensive, unnecessary and disparaging to the plaintiff who was a very senior teacher in the college and would amount to “bullying” within the meaning of the 2002 (now 2007) Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying At Work, or even within the ordinary dictionary definition of that word. In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.
21. The plaintiff told the court and, this teacher accepts, that the plaintiff left his classroom and ran down the corridor and into the ladies restroom which was about twenty feet away. He said that Dr. C. was not in the corridor at this time. I accept the evidence of Dr. C. that he had gone back to his office and had telephoned the Deputy-Principal and the Rev. Chairman of the Board of Management to advise them of what had occurred. I accept his evidence that he did not know when the plaintiff had left the classroom or where she had gone. The plaintiff gave evidence that when she emerged from the ladies restroom Dr. C. was waiting outside the door. She said that she walked down the corridor and he followed. She then ran into the home-School Liaison room and into her office adjoining that room and locked the door. Using her mobile telephone she immediately contacted two female colleagues, who were the then teachers’ representatives on the Board of Management of B.C.C. When they arrived she unlocked the door and told them what had occurred.
22. I reject as utterly improbable this evidence of the plaintiff that Dr. C. had waited outside the ladies rest room for ten minutes until the plaintiff re-emerged. Dr. C. told the court that the first time this suggestion had been made was during the hearing of the action. I doubt very much if even the most crass and insensitive pupil would do such a thing. While in that room the plaintiff could not have known where Dr. C. was. I believe that it was entirely coincidental that Dr. C. was walking down the corridor when she re-emerged from the ladies restroom. Dr. C. is a married man. He is, as the Rev. former Chairman of the Board of Management very aptly described him, “the Managing Director” of a considerable enterprise. The door to the ladies restroom is on a corridor of the college along which all manner of persons pass and re-pass. It is in my view therefore, an indication of what Dr. Mohan described as “disturbed perceptions” that the plaintiff should make such an allegation against Dr. C..
23. Unfortunately, the matter did not end here. The plaintiff and one of the other teachers whom she had summoned gave evidence that after the plaintiff had unlocked the Home-School Liaison room door, they saw Dr. C. looking in the window of the room from the yard outside the window. I am satisfied that the evidence establishes that this window is approximately eight feet in length and eighteen inches in height. It is made of Perspex, approximately one third of an inch thick which over the ten years of its existence had become discoloured, yellowed and clouded. In addition this window is covered throughout its length by very old and dusty thick net curtains hung in place in the 1970s. Further, the window is generally very dusty on the outside. I am satisfied on the evidence that during daylight hours a person inside this room looking out could only see the shadow of someone outside the window looking in with not even sufficient outline definition to determine whether that person was male or female. If the plaintiff and this other teacher saw someone outside the window on this occasion, I am satisfied that because of the previous events they surmised that it was Dr. C.. I accept his evidence that he did not go out into this yard and look in the window of the Home-School Liaison room.
24. I am satisfied that the events of the 24th October, 2007, when the plaintiff was recorded in the college attendance book as having been absent from work when she was in fact attending an authorised “In-school training course” and ought to have been marked “In service” was a simple mistake. I am also satisfied on the evidence that this mistake was rapidly corrected and that the plaintiff suffered no financial loss as a result of the error. I do not accept that this incident was deliberately contrived by Dr. C. to bully or to harass the plaintiff.
25. On the 20th November, 2007, a further confrontation occurred between the plaintiff and Dr. C.. The parent of a pupil in the school was loudly abusing another teacher for disciplining her son, (he had told that teacher to “shut up”). I find on the evidence, particularly by reference to a contemporaneous note made by the teacher in question and to a letter written by her to the Board of Management and dated the 13th December, 2007, that Dr. C., who just happened to be in the vicinity, heard the noise and came into the classroom and tried to mediate between this teacher and the parent. I accept the evidence of the teacher that she then noticed the plaintiff, with whom she was not on speaking terms, standing in the doorway of the classroom. Dr. C. gave evidence, which I accept, that the plaintiff ought not to have been there at all. I accept the evidence of this teacher and of Dr. C. that he was insisting that the parent go with him to his office to discuss the matter. Instead this parent ran over to the plaintiff who asked her if she was all-right to which the plaintiff replied, “Do you see what’s happening here”. The plaintiff told the court that as Home-School Liaison Coordinator she considered that she had a duty to represent all disadvantaged parents. I accept the evidence of Dr. C. that the plaintiff then advised the parent not to go with Dr. C. to his office unless someone else also went and that she should write to the Board of Management of B.C.C. about the matter. I am satisfied on the evidence that the parent then said that she would not go with Dr. C. to his office unless the plaintiff accompanied her. This was not acceptable to Dr. C.. I find on the evidence that he went over to the plaintiff in the doorway and said to her, “I am giving you an order, I am directing you to return to your room”. The plaintiff returned to her room and the parent went with Dr. C. to his office. Later the teacher was sent for and the parent apologised to her and they shook hands. I find that the plaintiff had no reason to come to or to remain in the door of this teacher’s classroom and, had no right or duty to interfere as she did. Her advice to the parent in the circumstances was grossly irregular, offensive to Dr. C. and, a challenge to his authority as Principal of the College. I find that Dr. C. on this occasion acted properly and proportionally and entirely within the scope of his authority as Principal of B.C.C. I find that on this occasion he neither bullied nor harassed the plaintiff.
26. I find that the quite extraordinary events which occurred at B.C.C. on the 26th November, 2007, came about because the plaintiff was by this time in effect working entirely independently of Dr. C. and the Deputy-Principal of the College. An aspect of this unsatisfactory state of affairs was that the plaintiff was seeking to adhere to a time-table which she had operated prior to September 2005, or, to a new time-table prepared for her by another teacher, but which had not been approved by the Deputy-Principal or even seen by him. I find that the Deputy-Principal, whose sole prerogative it was to approve the daily time-table for the entire College was now also being avoided by the plaintiff who had come to regard him as a supporter of Dr. C.. I find that the Leaving Certificate class which was scheduled, by reference to the college time-table, prepared by the Deputy-Principal, to use the computer room in the College at the time was unable to enter this room because the door was locked and the room was occupied by the plaintiff who was teaching computer skills to three parents of pupils at the college as part of the Home-School Liaison programme. I do not consider it necessary to determine how to by whom the door came to be locked. One of the school caretakers gave evidence that and had unlocked the door to this room. He saw the plaintiff entering the room and he had informed her that by reference to the daily time-table which he had been given that morning by the Deputy-Principal that another class was due to use the room. This class of about fifteen pupils had then arrived. The caretaker said that he went and told the Deputy-Principal that there seemed to be a double booking and that this class was unable to access the computer room and was standing about in the corridor. Significantly, the Deputy-Principal told the court that he had said to Dr. C. that he would deal with the matter as it was his problem and, accompanied by the caretaker immediately went to the area. For some unstated or unexplained reason, Dr. C. had followed. There can be no doubt on the evidence that the door of the computer room was now locked and that the Deputy-Principal knocked loudly on the door which was not opened. As neither the Deputy-Principal nor Dr. C. had keys with them, the caretaker who had a key then unlocked the door to this classroom. I am satisfied that the Deputy-Principal entered the room first followed by Dr. C. I am satisfied on the evidence that they did not “bang” into the room shouting and waving their hands about as alleged by the plaintiff.
27. I find on the evidence, with particular reference to a contemporaneous note made by Dr. C. on the 26th November, 2007, that as soon as he and the Deputy-Principal entered the room, the plaintiff, who had been standing beside a parent at a computer console, turned towards them saying loudly, “Here’s the Principal and the Deputy-Principal coming to bully me”. I am satisfied that the Deputy-Principal then told the parents that there had been a misunderstanding over booking and asked them to turn off the computers and to leave the room as another class was waiting. The parents hesitated, – a wholly natural reaction in the circumstances, – and I accept that Dr. C. and the Deputy-Principal then moved around the room saying “Come on, come on, out you go, out you go”. The plaintiff then protested that they were properly in the room as she had booked it and she pointed to a time-table fixed to the back of the door. The Deputy-Principal told the court that he had examined this A-4 size document and that he had never seen or approved of it. The plaintiff then told the parents not to leave the room and to continue with their work. Dr. C. pointed out that he was the Principal of the College and insisted that they leave. One of the parents told the plaintiff to telephone the Department of Education and the plaintiff had replied that she did not know the number. The evidence clearly establishes that Dr. C. then said to this particular parent, “Turn off that computer or I will call the gardaí”. To this the parent responded, “Well get them then”. The plaintiff then used her mobile telephone to summon the two teachers who were then serving as Teachers Representatives on the Board of Management of B.C.C.. Dr. C. said to the plaintiff “Don’t get another teacher out of her class”. One of these ladies then arrived followed very shortly by the other. One of them suggested to Dr. C. that perhaps both groups could use the computer room simultaneously. Dr. C. would not agree to this proposal and I am satisfied that his reasons for not agreeing were rational and reasonable. The parents then left the computer room and went with the plaintiff to the Home-School Liaison room. One at least of the parents wrote to the Board of Management of B.C.C. about this incident.
28. In my judgment, the behaviour of Dr. C. towards the plaintiff on this occasion was oppressive and bullying. However extremely provocative the plaintiff’s own behaviour may have been and however much her actions may have been interfering with the smooth running of the college on the 26th November, 2007, she should not have been publicly disparaged and humiliated by Dr. C. in front of the parents present. Her countermanding his direction to the parents to leave the computer room may properly be regarded as a amounting to scandalous insubordination. However, in my view it did not cause the bullying but was a consequence of it. I find that there was no necessity at all for Dr. C. to have been in the room on this occasion. The Deputy-Principal could have dealt with the matter as a simple double booking of the computer room, something which the evidence showed had happened in the past. But having chosen to enter, Dr. C. should have disregarded, for the moment at least, the locked door and the plaintiff’s first remarks, explained the position to her with regard to the other class and asked her to inform the parents present of the difficulty and invite their cooperation in the matter. In the event, he treated her and the parents as trespassers and trouble makers. It is significant that Dr. C. told the court that he had felt slandered and undermined and that the plaintiff was embarking on a course of confrontation with the management. Dr. C. later telephoned the Rev. Chairman of the Board of Management who promised to raise the matter at the meeting of the Board scheduled to take place on the 12th December, 2007. If it was raised no action was taken. By letters dated the 28th November, 2007, and the 14th December, 2007, Dr. C. invited the plaintiff to meet him and the Deputy-Principal to discuss the incidents of the 20th November, 2007 and the 26th November, 2007. However, the plaintiff was unable to see her way to attending such a meeting insisting that the matter was something which required to be dealt at Board of Management level and involving her solicitors.
29. The evidence in this case establishes, in my judgment, that the plaintiff considered that she was entitled to very considerable autonomy in the running the Home-School Liaison Programme at B.C.C.. It was never suggested by anyone during the course of the hearing that the plaintiff was anything other than a skilled, experienced and dedicated teacher. However, she no longer communicated with Dr. C. the Principal of the College or with the Deputy-Principal of the College. Having retaken her place on the C.A.R.E. Team on the 17th April, 2007, on resuming her position as Home-School Liaison Coordinator, the plaintiff, following a number of disagreements with other members of the Team who had complained that she was dominating the proceedings at meetings and, because she said that the “body language” employed by other Team members was discouraging her at these meeting, ceased to attend the meetings or to report to the CARE Team after the 13th October, 2007. The effect of this was that from the 13th October, 2007, onwards nobody in authority in B.C.C. really knew where the plaintiff was or what she was doing during her working day. I am however satisfied that she was carrying out her duties as Home-School Liaison Co-Coordinator with the same dedication as she had always devoted to her work.
30. Dr. C. for good and sufficient reasons in my judgment, in September, 2007, had declined to permit the plaintiff to function in the college in the specific role of a Counsellor/Psychotherapist. He advised her that it was ultimately a matter to be decided by the Board of Management of B.C.C., but that he would feel obliged to argue against such an appointment. I do not accept the plaintiff’s contention that by permitting her to do the degree course, Dr. C. had thereby agreed that she would become a Counsellor in the College. Unfortunately, the plaintiff saw this as yet another form of bullying of her by Dr. C. I am quite satisfied that it was not. His decision was taken within the scope of his authority and, as I have already found for reasons which were both rational and reasonable.
31. I find that since her return to B.C.C. on the 28th March, 2007, the plaintiff had been continuously treated by Dr. C. in a bullying and aggressive manner. She had been marginalised and treated by him with unrelenting hostility and contempt. This “freezing out” as she aptly described it caused the plaintiff anxiety and stress. She found particularly hurtful and damaging the fact that when addressing others in her company Dr. C. totally ignored her as if she was not there at all. For anybody, but especially a woman and a senior teacher in the college, this was a particularly savage form of bullying, targeting her and clearly designed to break her will to disagree with any future decisions of his. In all his dealings with the plaintiff after the 28th March, 2007, I find that Dr. C. behaved like an offended tyrant and not as a fellow teacher and long time colleague of the plaintiff who had been appointed to the senior management position in the college. It is certainly not an excuse for this conduct on his part that the plaintiff’s own behaviour in this period, in general and towards him in particular, was inappropriate and, should not have been tolerated by the Board of Management of B.C.C..
32. I find, that at the end of November 2007, Dr. C. had started to become anxious and concerned because of his almost total lack of information as to where the plaintiff was or what she was doing during college hours in her capacity as Home-School Liaison Coordinator. I accept his evidence that he had come to be concerned that the college and its Board of Management might become involved in legal or other problems arising out of the plaintiffs’ unreported and unsanctioned activities as Home-School Liaison coordinator. I accept his evidence that he was particularly anxious because were such to occur he considered that he would be criticised or held responsible because as Principal of the college he had an obligation to the Board of Management of B.C.C. and to the Department of Education to ensure that all teachers were fully and properly discharging their duties. In these litigious and confrontational times I am satisfied that this was a genuine and reasonable concern on the part of Dr. C..
33. Considerable controversy arose during the hearing of this action as to whether a letter dated the 15th December, 2007, from Dr. C. to the Rev. Chairman of the Board of Management of B.C.C. setting out in detail the problems he was experiencing with the plaintiff in the day to day management of the college, was in fact written on that date or whether it was written later and backdated in order to justify his employment of a private investigator to carry our surveillance on the plaintiff. I am satisfied on the evidence, particularly by reference to the contemporaneous diary entry by the Rev, Chairman of the Board of Management that this letter was handed to him by Dr. C. in the college on Wednesday, 19th December, 2007. I am also satisfied that the Rev. Chairman adverted to this letter at the meeting of the Board of Management held on the 10th January, 2008, and, that incomplete transcripts of this letter on yellow paper were on the Board table at this meeting but were not actually distributed to the individual Board members. I am satisfied that there was a brief discussion about this letter at the meeting and that the Board decided to invite Dr. C. and the plaintiff to attend a meeting of the Board on the 17th January, 2008 and explain their respective difficulties. I am satisfied on the evidence that Dr. C. was willing to adopt this course. However, by a letter from her solicitors, the plaintiff indicated that she was not prepared to attend at such a meeting without her solicitor being present as she had concerns about the impartiality of the Board. This was unacceptable to the Board and the meeting did not take place and no further action was taken by the Board of Management.
34. The letter dated the 15th December, 2007, again came before the Board of Management of B.C.C. when a further letter of complaint dated the 2nd April 2008 from Dr. C., and which referred to his earlier letter of the 15th December, 2007, was placed before the Board of Management by its solicitors. However, by this time the matter had passed into the field of litigation and the Board of Management did not consider it further until the 1st October, 2008. On that date the Board of Management under its present Chairperson, having taken advice from the National Coordinator of Home-School Liaison Schemes wrote to the plaintiff seeking details of plans, records, identity of families visited and other matters. After further written requests the matter concluded with a letter from the solicitors for the plaintiff to the Board of Management stating that, “As soon as she is medically fit we will hold a consultation to deal with your queries”. This quite extraordinary situation was resolved by the plaintiff requesting and being granted permission by the Department of Education to take early retirement.
35. This problem as to the authenticity of the letter dated the 15th December, 2007, of the letter dated the 2nd April, 2008, and of the minutes of the meeting of the Board of Management on the 5th December, 2006, all arose because several different texts of these letters and of these minutes were disclosed and put in evidence before the court during the course of evidence. While I consider that the trenchant criticism and close scrutiny by Senior Counsel for the plaintiff of what appears to have been a quite extraordinary practice on the part of Dr. C. of adding to these documents after they had been sent or circulated was entirely justified, I am not satisfied that this was done with a deliberate intent to mislead, though in fact that could well have been the result. I accept that the partial transcription of the letter of the 15th December, 2007, on yellow paper was simply that and nothing more and that it is quite unnecessary to endeavour to discover why or by whom this was done. I am satisfied that this letter of the 15th December, 20007, was a wholly genuine attempt on the part of Dr. C. to persuade the Board of Management of B.C.C. to take action in the matter. I am equally satisfied that what they did, though well intentioned, was altogether too little and too late.
36. It is unnecessary for me to consider what other course Dr. C. might have adopted in these circumstances. I am satisfied that he had endeavoured but with no success to persuade the Inspectorate of the Department of Education to become involved. Suffice it to say that I find that the course which he did in fact choose to pursue was wholly inappropriate. I find that the decision of Dr. C. on the 10th January, 2008, to engage the services of a private investigator for four days in early February 2008, to carry out a covert surveillance on the plaintiff during college hours amounted to a most serious harassment of the plaintiff by him. The activities of this private investigator were brought to an end by the intervention of An Garda Síochána and by an Order of this Court (Laffoy J.) made at the suit of the plaintiff on the 10th April, 2008. I find that the plaintiff has not established on the balance of probabilities that on the 15th September, 2008, and the 16th September, 2008, Dr. C. in breach of the Order of this Court made on the 10th April, 2008, again himself followed the plaintiff.
37. I accept the evidence of the plaintiff that on a number of occasions in December 2007, in the course of her work as Home-School Liaison Coordinator at B.C.C. she found it necessary to drive to the two Resource Centres associated with the college. She claims that on a number of these occasions she was followed by Dr. C. in his motor car. I am satisfied that she reported her concerns to the two teacher representatives on the Board of Management of the B.C.C. and to the three college committee members of the Teachers Union of Ireland. They do not appear to have taken any action in the matter. One must acknowledge the right of Dr. C. as Principal of B.C.C. to visit these Resource Centres whenever he saw fit or the occasion required. Dr. C. denied that he followed the plaintiff on any occasion. There seems little doubt that on one occasion when the plaintiff claims Dr. C. had followed her to one such Resource Centre that he was in fact there to meet members of An Garda Síochána in relation to a break-in and serious vandalism at the centre. I am not satisfied that the plaintiff has discharged the onus on her of establishing on the balance of probabilities that she had been bullied by Dr. C. by being monitored and stalked by him in this fashion.
38. I am satisfied from the evidence and, from my observations of the plaintiff in giving evidence, that she is a lady well capable of asserting and defending what she considers to be her rights. Nonetheless she is still a woman and for a woman on her own to have two men following her about in a car during her working day must be been a truly terrifying experience for her. I unhesitatingly accept her evidence with respect to these events. It is necessary to give a brief summary of what I accept occurred on the 7th February, 2008, and some other days.
39. When the plaintiff drove away from her home on the 7th February, 2008, at 09.15 hours she felt that she was being followed by another motor car with two occupants. She took various evasive measures but this care remained following hers. She made a mobile telephone call to her daughter who appears to have taken the not unreasonable view that her mother was suffering from over vigilance due to work related stress and sought to reassure her. The plaintiff was not reassured and made a mobile telephone call to her brother and explained her fears to him. He advised her to keep a close watch on this car and to keep in contact with him. When the plaintiff parked her motor car at B.C.C. she observed this other car being parked nearby.
40. On entering the college the plaintiff told one of the teachers representatives on the Board of Management whom she felt she could trust, what was occurring. She then informed one of the clerical staff in the college office that she was going to one of the Resource Centres. On arrival at this Resource Centre the plaintiff noted the same motor car parked nearby. On concluding her business at the Resource Centre the plaintiff carried out about seven home visits as part of her duties as Home-School Liaison coordinator. This car continued to follow her even when the house being visited by the plaintiff was situated in a cul-de-sac.
41. The plaintiff noted that one of the men in this car was wearing a yellow coloured helmet of a type worn by builders. I accept the plaintiff’s evidence that she felt hunted, threatened and terrified. She made another mobile telephone call to her brother. Acting on his instructions she noted the registration number of the car that was following her and telephoned the emergency number and explained the situation to An Garda Síochána. Subsequent Garda intervention ascertained that the plaintiff was being followed a private investigator personally employed by Dr. C. without the knowledge or approval of the Rev. Chairman or of the Board of Management of B.C.C..
42. Despite being fully aware of the plaintiff’s long and totally uncharacteristic absences from work, in 2005, 2006 and 2007, medically certified on each occasion as being due to work related stress, which he knew, or would have known had he chosen to consider the matter, rendered the plaintiff very vulnerable to some form of mental illness such as nervous breakdown, Dr. C. arranged for this single lady to be stalked by a private investigator. I find that it was reasonably foreseeable by him, that if the plaintiff for whatever reason, accident, her own hyper vigilance or the ineptitude of the investigator, became aware of being pursued by an unknown male the effect upon her was likely to be so traumatic as to precipitate her, vulnerable as she was, into mental illness. It was not necessary that he should have been able to foresee the actual injury ultimately suffered by the plaintiff. For Dr. C. to have so acted, whether deliberately or with reckless indifference even though he was or ought to have been aware that mental harm to the plaintiff might result from his actions, amounted in my judgment to malicious targeting and harassment of the plaintiff. I find it significant that Dr. C. did not seek prior sanction from the Board of Management of B.C. C. for this extraordinary course of action. Even if he believed that members of the Board whom he considered to be well disposed towards the plaintiff might warn her of his intentions, he did not consult the Rev. Chairman of the Board as he had in the case of other difficulties with the plaintiff since the 28th March, 2007.
43. It is well established in this jurisdiction, both at common law and now by s. 15 of the Employment Equality Act 1998, that even if the Board of Management of B.C.C. did not know or could not reasonably have known (which was not the situation in the present case), that the plaintiff was being bullied and harassed by Dr. C. in the course of her work, it is still vicariously liable for the wrongful acts of Dr. C. once those acts were committed by him within the scope of his employment. If find that the Board of Management of B.C.C. did not authorise any of the acts of Dr. C. which I have held amounted to bullying or harassment of the plaintiff. The Board of Management of B.C.C. was not aware that Dr. C. had engaged the services of a private investigator to carry out covert surveillance of the plaintiff during the course of her work which I have found amounted to harassment of the plaintiff. However, all these acts took place during the official school day and, in my judgment were related to his work and were a wrongful way of performing the task which Dr. C. as principal of B.C.C. was authorised to perform, that is, to manage the business of the college. This involved ensuring that teachers were present and were carrying out their duties properly and responsibly. The Board of Management of B.C.C. decided at its meeting on the 6th March, 2008, having queried Dr. C. at length about the matter, that he had acted within the scope of his employment in engaging the services of the private investigator and in paying for those services out of a college fund administered by Dr. C. Therefore, the vicarious liability of the Board of Management of B.C.C. for the acts of Dr. C. is not an issue in this case. What are involved are issues of foreseeability, causation and damage.
44. On the 22nd December, 2006, Dr. McMahon who had been the plaintiff’s General Medical Practitioner since 1980 concluded that the plaintiff was then suffering from anxiety disorder: prior to this his diagnosis had always been one of stress due to being bullied at work. On the 1st September, 2006, he had advised the plaintiff to take time off from work to recover from this stress which he attributed to being bullied and harassed at work by Dr. C.. On the 27th March, 2007, Dr. McMahon was satisfied that the plaintiff was sufficiently recovered to return to work and he noted that she was very keen to do so. The plaintiff did return to work on the 28th March, 2007, and, despite the events described previously in this judgment, it was not until the 1st April, 2008, that she again felt a need to consult Dr. McMahon.
45. On this occasion the plaintiff complained of being very anxious, unable to sleep, distressed and worried. Her complaint was that she had been followed on her house visits as Home-School Liaison Coordinator by a private investigator engaged by Dr. C.. She felt very despondent that the Board of Management of B.C.C. would do nothing. On this occasion, Dr. McMahon formed the opinion that the plaintiff was bordering on depression. However, he did not prescribe anti-depressants or anti-anxiety medication. He told the court that this was his normal practice as he considered that drug therapy should always be the option of last resort because of the danger of a patient becoming drug dependent.
46. The plaintiff presented again on the 28th August, 2008, following the death of her father, to whom she was very close. On that occasion she told Dr. McMahon that she was, “still fighting for her work conditions and trying to reinstate her service to pupils and parents”. On the 2nd October, 2008, the plaintiff next visited Dr. McMahon. He found her depressed. She asked to be referred to Dr. Abbie Lane, a consultant psychiatrist. Dr. McMahon agreed. He told the court that since she had first become his patient in 1980 and despite a difficult marriage and a very traumatic separation, the plaintiff had never previously needed such a referral. Department of Education sick leave records show that Dr. McMahon issued medical certificates to the plaintiff on the following dates: 9th September, 2008, 10th September, 2008, 2nd October, 2008, 20th October, 2008, 27th October, 2008, 17th November, 2008, 24th November, 2008, 10th December, 2008, 22nd December, 2008, 9th January 2009, 19th January, 2009, 26th January, 2009, and finally on the 9th February, 2009.
47. In cross examination Dr. McMahon accepted that he had never diagnosed the plaintiff as suffering from clinical depression or from any form of psychological or psychiatric illness. He considered that the plaintiff was suffering from severe stress and anxiety which he considered to be a psychological crisis but not an illness. He considered that the plaintiff should see a consultant psychologist, but she asked to be referred to Dr. Lane. She was seen by Dr. Lane on the 10th November, 2008. Dr. McMahon told the court that he had last seen the plaintiff on the 4th December, 2008. On that occasion she had told him that she had decided that resuming work was out of the question. He said that he was not at all in favour of this. He hoped that the plaintiff would resume her work as a teacher which she obviously enjoyed and he tried to persuade her to this effect. He considered that it was too early for her to retire and that it was not in the best interests of her own psychological welfare to retire. He felt that on this occasion she could overcome her problems just as she had done in relation to the very traumatic separation in 1999/2000.
48. Dr. Lane, a consultant psychiatrist, told the court that she saw the plaintiff for the first time on the 10th November, 2008, on referral from Dr. McMahon. On presentation, the plaintiff appeared stressed and pale and wept frequently during the consultation. The plaintiff complained of down mood present all day every day for more than two weeks, lack of interest in or enjoyment of everyday things, disturbed sleep, loss of appetite, constant fatigue, lack of motivation and, poor concentration. Dr. Lane concluded that the plaintiff was suffering from severe clinical depression with an overlay to post traumatic stress disorder. Because of the plaintiff’s description of feeling hopeless and worthless, Dr. Lane considered that there was a possible risk of self-harm and endeavoured, unsuccessfully, to persuade the plaintiff to undergo a period of in-patient treatment. She therefore prescribed anti-depressant and anti-anxiety medication, – Lustral, – at the maximum permitted dosage.
49. Dr. Lane reviewed the patient at two monthly intervals thereafter. By March 2009, she noted that the plaintiff’s mood had improved somewhat, but that she was still anxious, depressed and tearful. Dr. Lane considered that the plaintiff was just about able to cope with the normal chores of day to day living and was not fit to return to work. Throughout 2009, Dr. Lane provided the plaintiff with cognitive behaviour therapy. By June 2010, Dr. Lane was satisfied that the plaintiff was considerably recovered: her mood was up, she had recovered motivation and interest in things, her enjoyment of life had returned and she felt more hopeful. However, she remained anxious at times and was subject to occasional flashbacks and nightmares of persons following her. Dr. Lane concluded that the plaintiff was no longer depressed and was able to go out on her own without being overanxious or over vigilant. At this time Dr. Lane considered that the plaintiff was physically and mentally able to return to work at B.C.C. but she remained, very concerned that the plaintiff might become re-traumatised by a classroom incident, a difficulty with a parent or, continuing friction with the college administration or with colleagues on the teaching staff.
50. Dr. Lane produced in evidence the referral letter dated the 3rd October, 2008, sent to her by Dr. McMahon. This letter referred to bullying and harassment at work and to the fact that the plaintiff’s father had died recently. Dr. McMahon also referred to the fact that on the previous day he had detected what he considered to be signs of a depressive illness. It was Dr. Lane’s expert opinion, which I accept, that given the plaintiff’s history, the death of her father was not the cause her symptoms, though it probably added to her low mood. The fact that these symptoms had continued even though the plaintiff was away from the work environment since the 1st October, 2008, was an indication to Dr. Lane of the severity of the plaintiff’s depressive illness. I am satisfied that Dr. Lane was not shaken in her opinion that there was no other reasonable or rational explanation for the plaintiff’s illness in her history, other than the alleged bullying and harassment. Dr. Lane told the court that the plaintiff had informed her that on the 20th October, 2007, the Investigating Officer under the Code of Procedure had found that she had not been harassed or bullied at work in relation to the matters then at issue. The plaintiff told Dr. Lane that she did not accept this conclusion and that the bullying and harassment by Dr. C. had continued despite the investigation. Dr. Lane conceded that the investigation and its outcome would have had a traumatic effect on the plaintiff. However, she stated that she was quite satisfied by reference to the entire history that this was not what had caused the plaintiff’s illness: in her opinion that was the workplace situation. Dr. Lane accepted that prior to 1st April, 2008, there had been no diagnosis of depression in the plaintiff’s case. She told the court that constant stress and anxiety can lead to depression and that when she saw the plaintiff for the first time on the 10th November, 2008, she had no doubt whatever but that the plaintiff was then suffering from a psychiatric illness, – serious depression.
51. Dr. Lane told the court that in order to form a diagnosis that the plaintiff was suffering from severe depressive illness on the 10th November, 2008, she had to be satisfied that her symptoms had commenced no later than two weeks prior to the date of the consultation. However, given the severity of the plaintiff’s illness on that date she was satisfied that the plaintiff must have been suffering from depression for a very considerable time before that, probably for as long as two years. I find it very significant that on the 1st April, 2008, – almost five moths before her father died on the 25th August, 2008, – the plaintiff was diagnosed by Dr. McMahon as “bordering on depression this time”. Dr. Lane stated that she was aware that the plaintiff had applied to the Department of Education in 2009, for leave to retire on the basis of, “permanent ill health”. Dr. Lane stated that she was not aware that Dr. McMahon had strongly urged the plaintiff not to retire. Dr. Lane told the court that she did not have any role whatever in the plaintiff’s decision to retire.
52. Dr. Lane told the court that she was satisfied that the plaintiff was also suffering from post traumatic stress disorder. She said that the causative trauma was the threat to the plaintiff’s career and therefore her security, the feeling of helplessness in the face of the continuous bullying and harassment and, the profound threat to her core values. Dr. Lane considered that the accumulation of these matters would be sufficiently traumatic to induce post traumatic stress disorder in the plaintiff. In the plaintiff’s case she felt that all the classic symptoms of post traumatic stress disorder had become evident within the expected period: the plaintiff had intrusive memories of the events, nightmares and flashbacks, she was hyper aroused and tense which manifested itself especially in the form of hyper vigilance and hyper alertness, she avoided returning to the College, going out on her own, or anything which reminded her of the trigger events. However, Dr. Lane did not give evidence that the plaintiff had suffered a psychiatric injury because of an immediate fear for her own safety consequent on being followed by the two men. Dr. Lane admitted that she did not seek copies of Dr. McMahon’s’ clinical notes. I accept her explanation that she would not do so unless the plaintiff had a history of mental problems in the past. Dr. McMahon told the court without any reservation or equivocation that the plaintiff, in his medical opinion had not suffered from any psychiatric injury while she was under his care. No medical data studies or literature was advanced in support of the contention that a feeling of helplessness in the face of a perceived threat, not to one’s personal safety but to one’s career and not from a single traumatic event but from an accumulation of events over a period of nineteen months would be a sufficient trauma to give rise to post traumatic stress disorder.
53. It is significant that in the work, “Understanding Mental Health (Blackhall Publishing: 2006), which she produced in evidence by her, Dr. Lane at chap. 2, p. 27 states in respect of “post traumatic stress”, that:-
“This is a common condition which occurs some weeks after a person has been involved in or has witnessed a traumatic event. Examples include being involved in a road traffic accident, being held at gunpoint, being involved in a fire or an explosion. Symptoms come on between two and six weeks following the trauma . . . (etc.).”
54. In the circumstances and having regard to the decision this Court in Mullally v. Bus Éireann [1992] I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy [1996] 1 I.L.R.M. 312 I find that the plaintiff has not established, – the onus of proof being on her, – on the balance of probabilities, that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C..
55. Dr. Mohan a consultant forensic psychiatrist, who gave evidence in the case for the defendant, told the court that he had a consultation with the plaintiff on the 2nd December, 2008, and that he had also considered the following documents: the Report of the Investigating Officer dated the 26th October, 2007, the Pleadings in the instant case, the Clinical Records of Dr. McMahon, Dr. Lane’s Report, the Department of Education Attendance records relating to the plaintiff and, the views of Dr. C. and of his Solicitors. He accepted that the plaintiff did not have a personality disorder. However, he considered that she demonstrated an impaired judgment and a distorted interpretation of work place events, coupled with a tenacious sense of personal rights out of keeping with reality and, an excessive regard for her contribution to B.C.C.. Dr. Mohan agreed that he had come to this opinion principally from his analysis of the report by the Investigating Officer.
56. Dr. Mohan accepted that stress and anxiety, such as that reported by Dr. McMahon in his clinical notes relating to the plaintiff could be a significant causative factor in the onset of depression. However, he felt that the fact that the plaintiff had continued to work after the incident involving the private investigator in early February 2008, until the 1st October, 2008, with only very few days absent was, more consistent with stress than with clinical depression. Dr. Mohan told the court that if the plaintiff was in fact suffering from severe depressive illness on the 10th November, 20008, as was the opinion of Dr. Lane, he considered that evidence of the onset of that illness would have to be sought at least six months prior to that date, but not as far back as two years. He noted that the plaintiff had received no medical treatment for depression prior to the 10th November, 2008. Dr. Mohan considered that the very considerable emotional stress and feeling of victimisation reflected in Dr. McMahon’s clinical records, compounded by feelings of disappointment and anger on the 26th October, 2007, following receipt of the Investigating Officer’s report, followed by the death of her father, to whom she was very close, on the 25th August, 2008, could be capable of causing the plaintiff to become depressed. However, he considered that there was no evidence on the medical record of severe and persistent symptoms, at any rate prior to the 1st April, 2008. It was his opinion that the plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the work place.
57. I find on the balance of probabilities that the plaintiff has discharged the onus on her of establishing that she did suffer a psychiatric illness, in the form of clinical depression and, that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C. from the 28th March, 2007, onwards. The evidence established that Dr. McMahon considered that the plaintiff was fit to return to work on the 28th March 2007, and he furnished a medical certificate to that effect. I accept his evidence that the plaintiff was herself most anxious to return to work at that time. On the 1st April, 2008, Dr. McMahon found the plaintiff to be, “bordering on depression”. This was almost five months before her father died. Undoubtedly she continued to work, but it is not at all unusual for persons suffering from depression to continue to work and from what I observed of this plaintiff, I am satisfied that this would be entirely in keeping with her character. I am prepared to infer that the distress which the plaintiff experienced following the death of her father as noted by Dr. McMahon in his clinical notes for the 25th August, 2008, may have temporarily lowered her mood further, if it was already low. However, I am satisfied from her personal and medical history and from the evidence of Dr. McMahon based upon his unique insight into her character and psyche, as her general medical practitioner for over 30 years, that this bereavement did not cause or materially contribute to the onset of her depression which was noted for the first time by Dr. McMahon a few weeks later on the 2nd October, 2008.
58. Dr. Lane treated the plaintiff for depressive illness from the 10th November, 2008, to June 2010, by which time she considered the plaintiff was fit to return to work. Dr. McMahon agreed and Dr. Mohan accepted that the onset of depressive illness would be consistent with the sort of work place problems which the plaintiff claimed she was experiencing at the hands of Dr. C.. There was no evidence at all to suggest that the plaintiff had a pre disposition to depression even if an older sibling suffered from that illness. The evidence of Dr. McMahon, in my judgment, entirely disposes of that suggestion. I find that Dr. Lane is correct in her conclusion that apart from the constant stress and anxiety suffered by the plaintiff between the 28th March, 2007 and the 7th February, 2008, culminating in the traumatic events of the 7th February, 2008, there is nothing in the plaintiff’s life to otherwise account for the clinical depression suffered her. It was not suggested during the course of the action that the plaintiff was feigning illness or exaggerating her symptoms.
59. Whatever would have been the position in 2005 or 2006, I am satisfied, and I so find, that on the 28th March, 2007, Dr. C. knew or ought reasonably to have foreseen that any bullying or harassment of the plaintiff carried a “materially substantial risk” of the plaintiff suffering a mental injury as a result and could by the exercise by the reasonable care have avoided that result. Dr. C. and the Board of Management of B.C.C. knew that the plaintiff had been absent from work for a number of weeks in November and December 2005, certified by Dr. McMahon as suffering from work related stress. They knew that between the 31st August, 2006 and the 27th March, 2007, the plaintiff had been certified by Dr. McMahon as unfit for work due to work related stress. In my judgment this history of occupational stress put Dr. C. on notice that the plaintiff was vulnerable to some form of mental injury if she was subjected to further stress arising from such as would inevitably follow from bullying or harassment at work. Dr. C., despite the poor start on the 28th March, 2007, could have apologised to the plaintiff for his outburst, welcomed her back and sought to effect a reconciliation between them or if that was not possible, to at least try to work out a modus viviendi with her. If it proved impossible to re-establish even a professional working relationship with the plaintiff, then Dr. C. should have immediately called on the Board of Management of B.C.C. to intervene and to insist that the plaintiff cooperated fully with him in carrying out her duties as Home-School Liaison Coordinator. This is something which a reasonable and prudent manager would have done in the circumstances. Dr. C. ought reasonably to have known in commissioning the surveillance, that if the plaintiff became aware that she was being followed about in public by two unknown men and became frightened as a result, there was a clear and substantial risk that she would suffer a nervous breakdown, post traumatic stress disorder, depression, illusional disorder or some other form of mental illness.
60. Apart from being vicariously liable for the actions of Dr. C. the Board of Management of B.C.C. owed the plaintiff a direct duty of care, as her employer, both at common law band by virtue of the provisions of the Safety Health and Welfare at Work Act 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring. (Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349). I am satisfied that in the post 28th March, 2007, period the Board of Management of B.C.C. ought to have known, from correspondence from the plaintiff’s solicitors, correspondence from the parents of pupils in the college and, from the personal knowledge of several members of the Board involved in the day to day business of the college that the plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C.. For the same reasons to which I have adverted in the case of Dr. C., the Board of Management ought reasonably to have foreseen that there was a materially serious risk that the plaintiff would suffer some form of mental illness if the situation between her and Dr. C. was permitted to continue.
61. Despite this, the Board of Management of B.C.C. took no reasonable or proper steps as the plaintiff’s employer to address the situation. Following receipt of the letter dated the 15th December, 2007, from Dr. C. the Board of Management following its meeting on the 10th January, 2008, did invite Dr. C. and the plaintiff to meet the Board on the 17th January, 2008, and set out their respective grievances. I am prepared to accept the evidence of the Rev. former Chairman and of the current Chairperson of the Board of Management that the Board was not aware of the full extent of the problems existing and that neither the teacher’s representatives nor the Union representatives on the Board had formally raised the matter before the Board. Nonetheless, between April 2007 and the 10th October, 2008, the Board was aware that the plaintiff and Dr. C. were not communicating with each other, that confrontations were taking place between them and that this was essentially the same sort of situation which had formed the basis for the plaintiff’s complaint of bullying and harassment by Dr. C. on the 4th October, 2006. However, was apart from the single offer to meet the parties on the 17th January, 2008, the Board of Management took no positive action whatsoever to deal with the situation which the Deputy Principal in evidence described as “catastrophic, totally strange, unusual and unreal”. I find that this failure of the Board of Management to act as a reasonably careful and prudent employer would have acted permitted the continuous bullying and harassment of the plaintiff by Dr. C. to continue to the point where the plaintiff began to suffer clinical depression. Dr. C. told the court that he was driven by desperation to engage the services of the private investigator because of the failure to the Board of Management and the Department of Education to take any action in the matter. The evidence of the Rev. former Chairman of the Board of Management and the evidence of the current Chairperson of the Board suggests that the reason why the Board did not act prior to the 10th October, 2008, was that the procedures under the Code of Procedure were slow and complex and, “the lawyers had turned the whole affair into a procedural wrangle and a legal morass”. Certainly the correspondence admitted or proved in evidence in the course of the trial might afford a reasonable basis for that belief. However, this does not provide a reasonable or proper ground for taking no action at all for ten months. In my judgment the Board of Management of B.C.C. was in breach also of the direct duty of care, which, as her employer, it owed the plaintiff.
62. In my judgment the evidence establishes that the plaintiff was subjected to deliberate and continuous bullying and harassment by Dr. C. as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable. I am satisfied that from some short time after the 7th February, 2008, until June 2010, the plaintiff suffered a serious depressive illness. She has now recovered from this, but I accept Dr. Lane’s evidence that she remains at present anxious at times, is subject to occasional flashbacks and nightmares of persons following her and is vulnerable to becoming re-traumatised by any form of significant confrontation. However, neither Dr. Lane nor Dr. McMahon advised the plaintiff not to return to work or to take early retirement from teaching. On the contrary, Dr. McMahon strongly advised her against such a course. There was no evidence which would lead me to conclude that it would be irrational and unreasonable to expect the plaintiff to continue to serve as Home-School Liaison Coordinator or in some other teaching capacity in B.C.C.. She did so between the 7th February, 2008 and the 1st October, 2008 and with very few days absent from work. There is nothing I can see on the facts in this case which would in any way inhibit a simple and just resolution of the difficulties which have arisen between Dr. C. and the plaintiff which would enable them to continue to work efficiently together as professional colleagues, even if not as friends. The evidence in this case clearly established that it is quite usual for some teachers in large schools and colleges not to be on speaking terms with other teachers in the same school or college.
63. The court has already held that the defendants were negligent in causing or permitting the plaintiff to be harried, watched and beset in the course of her employment with the Board of Management of B.C.C.. I find that the same acts or omissions may form a basis for an action for breach of an implied term of contract. In Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57, Sellers L.J. delivering the judgment of the Court of Appeal held at p. 66 as follows:-
“It is perhaps sufficient if I say that, in my view, this question is a somewhat artificial one. The existence of the duty arising out of the relationship between employer and employed was recognised by the law without the institution of an analytical inquiry whether the duty was in essence contractual or tortious. What mattered was that the duty was there. A duty may exist by contract, express or implied. Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is no real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since in modern times the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract. It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.”
64. In the instant case I think it will be found that the plaintiff elected to present her case in tort. In these circumstances I feel that it can only lead to confusion to deal further with implied contractual terms and remedies for breach of contract.
65. In my opinion the actions of Dr. C. in this case do not amount to what Griffin J. described in Conway v. I.N.T.O. [1991] 2 I.R. 305 at 323 as, “wilful and conscious wrongdoing in contumelious disregard of another’s rights”. In such circumstances the court is not disposed to awarding exemplary, otherwise punitive damages to the plaintiff. In the same case Finlay C.J. defined “aggravated damages” as compensatory damages increased by reason of:-
“(a) The manner in which the wrong was committed involving such elements as oppressiveness, arrogance or outrage or,
(b) Conduct of the wrongdoer after the commission of the wrong: refusal to apologise or ameliorate the harm done, or threatening to repeat the wrong, or
(c) The conduct of the wrongdoer or his representatives in defending the claim up to and including the trial of the action.”
66. In my judgment the behaviour of Dr. C., towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The court will therefore award damages to the plaintiff for the personal injuries which she has suffered to the date of this judgment in the sum of €60,000 of which the sum of €5,000 represents the increased amount of the compensatory damages. The court will award the plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. €13,625 agreed specials.
Other Cases Referred to in Arguments
Educational Company of Ireland Ltd & Anor. v. Fitzpatrick & Others [1961] I.R. 345.
Kennedy & Others v. Ireland and the Attorney General [1987] I.R. 587.
Allen (Claimant) v. Dunnes Stores Ltd. (Jan. 1995) [1996] Employment Law Reports 203.
The Health Board v. B.C. & The labour Court (Jan. 1994) Employment Law Reports.
Maher v. Jabil Global Services Ltd. [2005] I.E.H.C. 1310.
McGrath v. Trintech Technologies Ltd. [2005] 4 IR 382.
O’Keeffe v. Hickey & Others [2009] 1 ILRM 490.
Two Named Female Teachers and the Equality Authority v Board of Management and Principal of a Boys Secondary School
DEC-E-2001/05
Equality Officer
25 January 2001
[2001] 12 E.L.R. 159
Background
The claimants allege that on various occasions commencing in June 1996 they were subjected to sexual harassment of a physical, verbal and written nature by pupils at the school. The claimants and the Equality Authority, referred to in this recommendation as the Authority, allege that the management of the school failed to respond adequately to complaints of sexual harassment made by the union and failed to take responsibility for the working environment at the school. The claimants also allege that they were victimised by the school for having referred or indicated an intention to refer complaints to the Labour Court.
The first named claimant referred a complaint to the Labour Court in April 1998 and the second named claimant referred a complaint in July 1998, both under section 19 of the 1977 Act. The Authority referred a complaint in August 1998. In the case of the second named claimant’s and the Authority’s referrals the first discriminatory acts were alleged to have taken place more than six months prior to the referrals to the Labour Court and the complainants were therefore required to satisfy the Labour Court that reasonable cause existed as to why the complaints were not referred within six months of the first alleged acts taking place. The Labour Court determined that reasonable cause was shown in each case and referred the three complaints to an Equality Officer for investigation and recommendation. Submissions were received from the parties to the claim and a joint hearing of the complaints was heard on 14 December 1999 and resumed on 2 February 2000.
Summary of the claimant’s case
The claimants allege that the school discriminated against them in terms of section 2(a), (b), (c) and (d) of the Employment Equality Act 1977. The claimants’ representative indicated at the hearing that the complaints relating to paragraphs (b) and (c) of section 2 were withdrawn.
Section 2(a) and (d) state that discrimination shall be taken to occur:
(a) where by reason of his sex a person is treated less favourably than a person of the other sex,
(d) where a person is penalised for having in good faith—
(i) made a reference under section 19 or under section 7 of the Act of 1974,
(ii) opposed by lawful means an act which is unlawful under this Act or the Act of 1974,
(iii) given evidence in any proceedings under this Act or the Act of 1974, or
(iv) given notice of an intention to do anything referred to in subparagraphs (i) to (iii).
*162
The school is a secondary level boys school with a teaching staff of 25 teachers, including seven female teachers. The first named claimant has been employed as a permanent remedial and Irish teacher at the school since August 1994 and the second named claimant has been employed at the school as a temporary wholetime religion teacher since August 1995. The claimants allege that they are obliged to work in a working environment which is hostile on grounds of gender and that staff are routinely subjected to verbal and written gender based abuse by pupils.
On 8 October 1997, while teaching a class of sixth-year pupils, a lewd and sexually offensive note was attached to the first named claimant’s back. The first named claimant reported the matter to the principal and two pupils were found responsible. The boys remained in the school for four days after the incident and were then suspended pending a board of management meeting on 24 October 1997. At this meeting the board decided to suspend the boys for one week, however this period coincided with the mid-term break effectively negating any punitive effect. The first named claimant states that she received no communication from the board in relation to the incident and did not receive an apology from either of the boys involved.
The second named claimant states that in her first year of employment with the school she became concerned about a school environment which appeared to tolerate unacceptable student behaviour of a type which she recognised as sexual harassment including whistling and name calling of a sexually offensive nature directed at herself and other female members of staff. As a newly appointed temporary teacher she was reluctant to make any formal complaint. However as the behaviour continued into her second year she began to formally report incidents of sexual harassment using the school’s disciplinary procedure. The union in its submission refers to 10 separate incidents which took place between 29 September 1996 and 1 April 1998 where it is alleged that the second named claimant was the victim of sexual harassment.
In further support of the claimants’ allegations that the board of management failed to provide a safe working environment for female teachers, the union cited two instances where two other female teachers were subjected to sexually abusive behaviour by pupils. In October 1997 a female teacher who was employed by the school on a short-term basis, was unlocking a classroom door when two pupils were pushed up against her. The incident was witnessed by the vice-principal who reprimanded the boys. Shortly afterwards a sexually offensive remark was shouted out in her presence in the classroom. The teacher, who was very upset by the incident, reported the matter to the principal and vice-principal who apologised on behalf of the boy. The teacher left the school and did not subsequently return to work there. At a meeting attended by the principal and a union representative some months later when the union raised this incident, the principal responded by saying that he believed the offensive *163 remark may have been directed at another boy in the class. In the second incident which took place on 19 November 1997 a female teacher made a complaint, using the ‘Serious Breach of Discipline’ complaint form (generally referred to as a ‘blue report form’), in relation to a pupil who made a sexually offensive remark to her in class.
The union states that the board of management of the school allowed serious gender based discrimination to continue at the school despite having been systematically made aware of incidents of sexual harassment through the formal reporting system. The union argues that while these complaints on occasion resulted in disciplinary action against perpetrators it should have been clear to the school that their responses to the problem were totally inadequate. According to the union this failure of duty on the part of school management was compounded by the manner in which the board and the principal failed to respond to legitimate attempts by staff representatives to resolve the problem. The union further alleges that comments made to the second named claimant by the principal and actions taken against her have resulted in her feeling intimidated and concerned for her continued employment in the school.
The union in its submission, outlined the history of its dealings with the principal and the chairman in its attempts to meet the board of management. Various dealings with the principal in relation to specific incidents of alleged sexual harassment have already been referred to in the above paragraphs. In November 1997 the union wrote to the board of management complaining about the handling of complaints of sexual harassment at the school and requesting a meeting. The board responded: ‘In order that the board be in a position to fully address the issues raised in your letter, you are requested to furnish full details relating to same. When the facts are established, the board will consider the possibility of a meeting to discuss the broad question of discipline in the school’. The letter was signed by the principal in his capacity as secretary to the board. As many of the incidents referred to in its submission had already taken place and been formally reported to school management this response was a cause of great surprise to the union. The union representative advised the principal that he would be calling a staff meeting staff to discuss the board’s response and student behaviour towards teachers in general and also sought a meeting with the principal to discuss these matters. Before the staff meeting on 11 December 1997 the principal wrote to the union representative stating that as the first named claimant had referred her complaint to a statutory authority no further discussion on the matter should take place ‘until the matter has been expedited’. The first named claimant explained to the meeting that she had sought the advice of the then Employment Equality Agency in the matter. The first named claimant did not refer a formal complaint to the Labour Court under the 1977 Act until April 1998. The union representative subsequently made further requests for a meeting with the board, orally on 11 December 1997 to the *164 principal in his capacity as secretary to the board, and by letter, on 22 January 1998. A meeting of the board took place on 19 February however, the union heard nothing of its request for a meeting other than an acknowledgement received from the principal on 5 February 1988.
The union wrote once again to the principal on 2 March 1998 expressing alarm that nothing had been heard from the board meeting of 19 February. The principal, as secretary, responded in writing on the same day stating that the request for a meeting with the board was premature as the details requested in their reply of 7 December 1997 had not yet been furnished by the union. The union states that throughout this period the second named claimant continued to be the victim of sexual harassment. Following further correspondence with the board, the union representative agreed to meet the principal. At this meeting the union representative complained about the board’s failure to meet a delegation and reiterated the fact that the many incidents were formally reported to management using the blue disciplinary report forms. According to the union representative, the principal then said that he ‘had had enough of this’ and that the union representative should ‘put up or shut up’ and that the principal intended to meet with the general secretary of the union (the principal is himself a member of the same union). The union again wrote to the board on 26 March 1998 seeking a meeting. A letter from the principal to the union representative dated 27 March 1998 states that the union representative was unwilling to substantiate claims of sexual harassment and gave seven days for a withdrawal of the claims. The union replied pointing out the several occasions on which the principal had been made aware of the sexual harassment problems. Five days later on 1 April 1998 the second named claimant was subjected to two further incidents. The next day the union representative spoke to the chairman of the board on the telephone for an hour about the ongoing incidents and again sought an early meeting with the board. According to the union, the second named claimant was called to a meeting with the principal the same day, i.e. 2 April 1998 where the principal spoke to her about teachers going to the union behind his back, about temporary teachers being misled by permanent teachers, about the seating arrangements in her classroom, about the union representative’s role and the question of whether or not the second named claimant would be offered permanent employment in the school. On foot of this development the union representative telephoned the chairman and insisted on meeting him that night with the second named claimant. A meeting took place as requested and the chairman having listened to the second named claimant’s presentation responded in a kind and concerned manner. The union representative followed this meeting with a further written request for a meeting between the board and staff representatives.
According to the union, a staff meeting took place on 3 April 1998 at which the issue of sexual harassment was raised. The union states that the principal *165 publicly referred to the meeting he had the previous day with the second named claimant and challenged her interpretation of that meeting. This public discussion was a cause of further humiliation for the second named claimant. On 20 April 1998 a staff delegation was invited to meet the board three days later. The union nominated its school representative, a member of the union’s standing committee, the school steward and a female teacher, however the principal objected to the make-up of the delegation and the board refused to meet the delegation. The delegation agreed, under protest, to meet representatives of the board, i.e. the chairman and a parent representative. The board representatives were informed of the range and seriousness of the incidents of sexual harassment at the school over several years and undertook to bring everything said to the attention of the board. On 14 May 1998 some members of the board met with some members of staff and according to the union representative, several problems arose at that meeting, i.e. staff comments were blocked, there was no real acknowledgement of the problem and no facilitator was provided (previously suggested by a board member) and some board members were not present. At this point the union representative advised the board that it would proceed with the formal complaints under the 1977 Act. The first named claimant’s complaint had in fact been received by the Labour Court on 6 April 1998. The second named claimant’s complaint was received on 27 July 1998.
In the case of the second named claimant’s complaint, the first discriminatory act was alleged to have taken place more than six months prior to the referral to the Labour Court and in accordance with the 1977 Act she was required to satisfy the Labour Court that reasonable cause existed as to why her complaint was not referred within six months of the first alleged act taking place. A hearing of the Labour Court was held on 28 September 1998 to address this matter and was attended by the second named claimant and the principal among others. As this was a normal school day the second named claimant had to take time off from class to attend the hearing. According to the union the hearing ended at 11.20 a.m. and the second named claimant had to travel afterwards on foot, by public transport and by car from the Labour Court in Dublin to the school in [named] town. The union states that on her arrival in her classroom at 2.05 p.m. the principal was in the classroom ahead of her and proceeded to address the pupils on the issue of punctuality. The second named claimant, who had a valid reason for being late for the afternoon class, experienced serious professional embarrassment from the principal’s comments to the class which she clearly understood, although directed at the students, were meant for her. The following day, the second named claimant was summoned to the principal’s office and was criticised for being late back from the Labour Court. The second named claimant found this action to be most intimidatory.
The union states that the second named claimant’s distress was added to when at a staff meeting on 1 October 1998 the principal spoke to staff about *166 the ongoing sexual harassment complaints, timekeeping for teachers and then went on to say that the school catechist, who was on career break and for whom the second named claimant had been the temporary replacement for three years, had resigned and that the school would not be replacing her with a catechist the following year.
The second named claimant, in a supplementary submission in support of her claim of victimisation submitted between the hearings, outlined further dealings which she had with the principal after she had first raised the issue of sexual harassment through the union. The second named claimant felt that she was being challenged on many issues which would not normally attract the principal’s attention. She refers to a dispute about whether or not her mother notified the school on a particular day that she was unable to attend due to illness. She also refers to unusual behaviour by the principal in her class where he went about moving desks and said to her in front of the class ‘it is about time that we got some proper classroom management in this room’. Later on the day of the latter incident she met the principal in the staff kitchen and asked could they talk about the comments he had made that morning in front of her class. He said that he had a problem with the desks, they were out of line and not straight. In relation to his comments, he said that he had a problem with her standard of teaching and had done so for a long time. He said that he had ‘been in every other teacher’s room and, they had standards and obviously some peoples ideas of standards are different from others’. The second named claimant states that in her four years teaching up to that point the principal had never once talked to her about any problem he had with her work or standards. The second named claimant refers to doubts raised by the principal in relation to her re-appointment and in particular, a letter from the principal dated 3 April 1999 stating that the board of management would be unable to offer her a teaching post for 1999–2000. The board would however be pleased to consider her for the position if the Department allowed the post to be retained. In the circumstances pertaining at the time the second named claimant was shocked at this letter.
At the commencement of the first hearing, the claimants’ legal representative brought to the Equality Officer’s attention, a notice posted in the school staff room the day before the hearing by the principal stating as follows:
An equality officer from the Labour Court will conduct a hearing into the alleged sexual harassment claim on Tuesday, 14 December 1999 at 2.30 p.m. in the [named] hotel.
Since it would not be possible to provide adequate ‘cover’ for all the classes, I have decided to close the school at 2.15 p.m.
In my view, all members of staff should be afforded the opportunity to *167 attend the hearing, since the decision to authorise the union to initiate the proceedings against the board of management was taken by the teachers at an [named union] meeting.
Signed … principal, 13 December 1999.
It is the claimants’ contention that the posting of this notice was a direct attempt to intimidate them by inviting all staff members to a private hearing.
Summary of the Equality Authority’s case
The Authority referred a complaint to the Labour Court under section 20 of the 1977 Act. Section 20, read in conjunction with section 36, states:
20.— Where it appears to the Agency—
(a) that discrimination is being generally practised against persons or that a practice referred to in section 3 (2) is being applied or operated,
(b) that discrimination has occurred in relation to a particular person who has not made a reference under section 19 in relation to the discrimination and that it is not reasonable to expect such a reference by him,
(c) that a person has procured or attempted to procure another person to do anything in relation to employment which constitutes discrimination, or
(d) that a publication or display in contravention of section 8 has been made.
the matter may be referred to the court by the agency and shall be dealt with as if it were a reference under section 19 of a dispute.
The Authority alleges that female members of the teaching staff at the school have been the victim of discriminatory treatment at the school from in or about 1996. The Authority refers to submissions made on behalf of the claimants by the union and states that it is clear that the female teaching staff have been generally subjected to unwanted conduct of a sexual nature and other conduct based on sex affecting their dignity at work. The Authority argues that freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect and refers the Equality Officer to the case of A Garage Proprietor v. A Worker EE 02/1985. The Authority states that female staff of the school are clearly being treated less favourably than the male staff of the school because of their gender. The Authority states that the fact that the perpetrators are students of the school and not staff is irrelevant to the respond *168 ent’s liability as employer under the 1977 Act and refers the Equality Officer to the case of A Worker v. A Company EE 03/1991 where the Labour Court held that in failing to protect the worker against harassment by a non-employee who had access to the company’s premises, the employer had ‘in effect imposed discriminatory conditions of employment on the worker’. The Authority states that it is clear from the correspondence between the union and the school that the latter, and in particular its principal, were in a position to eliminate or prevent the discriminatory treatment by taking effective remedial action which it failed to do. The Authority adds that no code of practice or policy statement has been adopted by the school, no guidelines have been issued as to how students should behave and there are no clear grievance procedures established for this type of conduct.
At the first hearing the respondent’s legal representatives argued that the Authority’s complaint was not a valid complaint within the meaning of section 20 of the 1977 Act. In a later submission, the Authority’s legal representative argued that the Equality Officer had no jurisdiction to consider whether or not the complaint was a valid complaint within the meaning of section 20 of the Act where the Labour Court had referred the complaint to an Equality Officer for investigation. In this regard the Authority referred the Equality Officer to the High Court decision in the case of Aer Lingus Teo v. Labour Court [1990] ELR 113 where Carroll J stated that once a dispute had been referred to an Equality Officer, the Equality Officer’s sole function was to investigate whether the act complained of was discriminatory or not and make a recommendation. The matter at issue was whether or not the complaint was referred within the statutory time-limit and Carroll J stated that the Equality Officer ‘has no function to deal with the time bar’. The Authority argues that the Respondent had an opportunity to raise the matter of the validity of the Authority’s complaint under section 20 with the Labour Court either at or prior to the time-limit hearing but did not do so.
The Authority, in its second submission, expanded on their legal arguments in relation to the school’s vicarious liability for the actions of pupils at the school. The Authority takes issue with the respondent’s submission that a school cannot be said to be vicariously responsible for the acts of its students and states that the concept of vicarious liability is not necessarily restricted to the employer/employee relationship. The Authority quotes from LG.Fleming, The Law of Torts (9th ed., 1998), pp. 409 et seq.: ‘vicarious liability cannot parade as a deduction from legalistic premises, but should be frankly recognised as having its basis in a combination of policy considerations’ and suggests that these policy considerations are linked to compensation and deterrence. The Authority submits that (a) a body, whether an employer or a school, which creates a risk bears the loss when the risk ripens into harm and (b) fixing the respondent with responsibility for the students’ wrongful acts will have a de *169 terrent effect and will encourage the respondent to take the necessary steps to stamp out sexual harassment of the female teaching staff.
The Authority submits that if the respondent is not vicariously liable for the acts of the students, a claim of sex discrimination can still succeed if it can be shown that the sexual harassment of the female teaching staff by students was something which was sufficiently under the control of the respondent that, by the application of good education practice, it could have prevented the sexual harassment or reduced the extent of it. The Authority refers the Equality Officer to the case of Bennett v. Essex County Council EAT No. 1447/98 where the English Employment Appeals Tribunal found a school liable under the Race Relations Act 1976 for racial abuse of a black teacher by its pupils. The Tribunal found that it could not be said that the school took all reasonable steps to prevent Mrs Bennett being subjected to racial harassment by pupils, even taking into account the difficulty which the school experienced in controlling some of those pupils.
Summary of the respondent’s case
In a lengthy submission prepared by the principal, the respondent provided a comprehensive history of events surrounding the allegations of sexual harassment, interactions between management, staff and the union, copies of relevant correspondence, reports of board of management meetings, etc. In describing the school’s view of sexual harassment, the principal states that the management of the school are abhorrent at any word or action calculated to show disrespect towards any teacher or pupil at the school. The school sympathises with any person who feels that his or her sense of personal dignity has been undermined by those in their care and offers the fullest support to each teacher. Similarly, students are guaranteed the same degree of care and concern and the trust that their parents placed in the school will not be betrayed. The principal states that mutual respect is one of the core values of the school. ‘While the pupils are trained to show respect for each of their teachers, the teachers themselves are keenly aware of the privileged position in which they find themselves — in loco parentis. Conscious of this, they realise that, unlike manufacturing industry, the flawed product cannot be discarded, as if it had no intrinsic value.’
The principal refers to a partnership document on discipline entitled ‘The Code of Behaviour and Discipline’ which has been amended in the light of complaints of sexual harassment by pupils. A three-person Discipline Committee meets twice weekly to deal with disciplinary problems which have been properly presented in the official breach of discipline report form. Either party to a complaint may appeal the decision of the Discipline Committee to the principal, whose decision may be appealed to the board of management, whose decision in turn may be appealed to the trustees. It is the view of the board of *170 management that all ‘internal channels’ should be fully explored before seeking help from the outside.
Explaining the context in which the present dispute developed, the principal states that when he became the first lay principal of the school in 1989 a small number of teachers appeared to feel unhappy. He goes on to say ‘I now realise that this is a rather common feature of life, where some people are unable to come to terms with, what they perceive to be, unpalatable facts. It would appear that the passage of time has not lessened their sense of angst and disappointment. Happily, however, the vast majority of staff viewed my appointment as a very positive step, likely to contribute to the further advancement of the school. Regrettably, the disaffected group has been less than co-operative over the years …. Bearing in mind that no useful purpose would be served by delving into the more unpleasant aspects of their activities, I will move on to discuss the events that gave rise to our present difficulty’. Throughout the submission, the principal emphasises that ‘all matters relating to internal organisation, management and discipline of the school are the responsibility of the principal, in accordance with Article 22 of the articles of management. There is, of course, a right of appeal to the board of management, if one is dissatisfied with one’s dealings with the principal. It is not permissible, however, to attempt to circumvent the principal for any reason’.
At paragraph 3.8 above, the union described a meeting between the second named claimant and the principal which left the second named claimant deeply distressed. The chairman of the board, in a document included in the submission, states that this account of the meeting is totally at variance with the principal’s recollection of events. According to the principal, the meeting was amicable and non-confrontational and at the end of the meeting the second named claimant thanked him and appeared quite happy. The principal was dumbfounded by the subsequent allegations. The chairman states that the whole business has been a traumatic experience for the principal and considers that there was not the slightest doubt but that the principal was a victim of serious harassment and that grave injustice was being done to him. The respondent outlined the history of communications between the board and the union and this concurs with the union’s version of events. The respondent reaffirms the board’s reluctance to meet a union and staff delegation to discuss complaints of sexual harassment until the union had given specific details of the complaints that had been made.
The principal outlined in detail from available records or memory, the manner in which complaints were handled by management. In relation to the incident in October 1997 involving a female substitute teacher, the respondent states that she was employed for one day only and that the difficulties commenced in the afternoon when she was five minutes late for her transition year class. The pupils were waiting outside the locked room and had to be called to *171 order by the vice-principal. The respondent states that it is alleged that on entering the room the teacher lambasted the class ‘in a rather unprofessional manner’ giving rise the next day to complaints from two pupils that they had been grossly insulted by the manner in which they were addressed. The respondent states that having failed to take command of the situation, the teacher reacted to the crude language used by a pupil to his friend in relation to the outcome of a game of snooker and left the room. The principal spoke with the teacher in the staffroom afterwards and expressed his deepest concern for what had happened and added that he intended to conduct an immediate inquiry. The teacher said that she knew the remark came from the back of the class but did not know from whom. The principal invited her to complete a blue disciplinary report form but she declined. She then went home having been paid for the full day.
The respondent states that the incident of 8 October 1997 involving the first named claimant was given due consideration by the board on 23 October. The union had argued that the disciplinary action taken against the offending pupil was effectively negated by the fact that one week of his suspension overlapped with the mid-term break. The respondent outlined the board’s position in relation to this particular pupil stating that the incident took place on the 8 October 1997 and that the pupil was immediately suspended by the principal pending a full board meeting which took place on 23 October 1997. As the mid-term break was approaching, the board felt that it would be better for all concerned not to prolong the issue but to begin afresh after the break, taking into consideration also the fact that the pupil was in his final Leaving Certificate year and had an exemplary record prior to the incident. The chairman points out that the first named claimant also refused to allow the pupil in her class thereafter and that this was a further sanction and that contrary to what the union states, the pupil went to the teacher afterwards to apologise but she refused to accept his apology. She was entitled to appeal the board’s decision to the trustees but did not do so.
Referring to the second incident mentioned by the union involving other female teachers, the respondent states that the pupil in question was singing the words of a song. Following an investigation by the discipline committee, the principal called in the boy’s father. The respondent states that the teacher readily accepted that the pupil was singing the opening line of a pop song and apologised to the pupil’s father. While accepting the teacher’s apology, the pupil’s father however alleged that she had picked on a pupil in his eldest son’s class on numerous occasions and sought to undermine his confidence by raising one of the other cases of alleged sexual harassment.
The principal comments as follows on the incidents involving the second named claimant which are documented in Appendix 1:
Incident 1 — 29 June 1996: the principal states that he interviewed the par *172 ents of both boys involved and that they were very shocked at their sons’ behaviour. The parents of one of the boys agreed that it would be better if he transferred to another school which he did shortly afterwards and the parents of the other boy assured him that they would do all in their power to guide and direct him with the principal’s support.
Incident 2— September 1996: the principal states that apart from a blue form dated 26 September 1996 which had no sexual connotations there are no other complaints recorded as alleged.
Incident 3 — 18 December 1996: the principal states that despite an exhaustive inquiry, it could not be established beyond reasonable doubt that the offending script had been written by the pupil whose name was on it. The handwriting did not match that of the named pupil and as other pupils had assisted in gathering papers from the eighty-seven pupils present on the day, the principal concluded that the offending script may have been surreptitiously included with the pupil’s script. He did not therefore impose any penalty and the second named claimant appeared fully satisfied that all reasonable steps had been taken.
Incident 6 — 29 September 1997: the principal states that although this incident is central to the whole issue of sexual harassment, the union glossed over it in their submission. The principal states that on foot of the second named claimant’s complaint he called in the pupil’s parents and advised them that there were two options open to the pupil: (a) allow the matter go before the board of management or (b) transfer immediately to another school. The parents chose the latter option and the pupil transferred shortly afterwards. The principal states that this illustrates clearly that decisive action was taken when any form of disrespect was shown to teachers.
Incident 7 — November 1997: the principal furnished a letter from the chairman of the Discipline Committee contradicting the union’s version of what happened when the second named claimant presented her complaint to the Committee. The letter states that the second named claimant ‘appeared to appreciate’ the difficulty in trying to pursue a complaint against an unknown offender and the form was handed back to her and not torn up as stated by the union.
Incident 8 — 9 March 1998: the principal states that the boy accepted responsibility for his actions and that when he spoke to the boy’s mother she was particularly upset about the incident and confided in the principal about the boy’s ‘family situation’. The boy was suspended for five weeks on foot of the incident and has not transgressed since.
Incident 9 — 1 April 1998: the principal questions the manner in which the second named claimant contacted the union on the same day that she made her complaint to the Discipline Committee and points out that the other teacher to whom the second named claimant was talking at the time remains unnamed and never made any complaint. The Discipline Committee noted that the pupil *173 had acted on impulse and had learnt his lesson.
Incident 10 — 1 April 1998: the principal states that he called in the parents of two boys in connection with the incident and informed them that he was considering suspension. The parents were deeply upset about the incident and wished to meet the second named claimant to apologise, however she refused this request. On appeal, the principal replaced the period of suspension with a number of Friday evening detentions.
The board argues that it acted fairly and justly in relation to the complaints of sexual. harrassment. The board asks the question, ‘How can the board exercise its function properly and impartially if it can expect to be brought to the Employment Equality Agency and/or the Labour Court or involve the [named union] Standing Committee each time its decision is unacceptable to member of staff. The board acts on behalf of the Trustees and they are the first channel of appeal against any decision taken by the board of management. The Trustees were not even informed in this case.’ The respondent points out that the claimants never appealed the outcome of disciplinary procedures brought against offending pupils.
The respondent outlined various practical measures which the board of management took to address the issue of sexual harassment. On 12 February 1998 a Staff In-Service Day on ‘Positive Discipline and Difficult Youth’ was held at the school and directed by a recognised UK expert in the field. In September 1998 an entire Staff Day was devoted to the subject of sexual harassment, having been agreed by the chairman and the union representative as the best way forward. The board points out that a number of staff members ‘have very different views on the whole affair’ and have expressed their concerns verbally and in writing to the staff and to the union. The principal’s submission included copies of correspondence from other teachers, including a female teacher, challenging the union’s approach to complaints of sexual harassment.
The respondent’s legal representatives argued that the Authority’s complaint was not a valid complaint within the meaning of section 20 of the 1977 Act. They argued that the Authority had presented no evidence of discrimination but relied entirely on evidence presented in the union’s submissions on behalf of the two claimants named in the section 19 complaints. They argued that as the claimants had submitted complaints to the Labour Court they were not persons to whom section 20(b) referred and that the Authority’s complaint was not appropriate for investigation by the Equality Officer.
Conclusions of the Equality Officer
The cases referred to me for investigation by the Labour Court were that the school discriminated against the claimants in terms of section 2(a) and (d) of the Employment Equality Act 1977 and contrary to section 3 of that Act and, in relation to the Authority’s complaint, that the school generally discriminates *174 against female teaching staff contrary to section 3 of that Act. In making my recommendation I have taken into account all the submissions, both written and oral, made to me by the parties.
I will firstly address the question of the validity of the Authority’s complaint under section 20 of the Act as raised by the respondent. above. While I am satisfied that section 20(a), in enabling the Authority to refer complaints where it considers that discrimination is generally being practised in a particular employment against unnamed persons, does not preclude the Authority from relying on evidence presented by a named person in connection with a section 19 complaint, I consider that it is not for me to make any recommendation on this matter as I am bound by the decision of Carroll J in the case of Aer Lingus Teo v. Labour Court and that where the Labour Court refers a complaint for investigation by an Equality Officer it is not for the Equality Officer to consider jurisdictional matters which properly fall to the Labour Court to decide.
The claimants and the Authority have argued that female teachers are subjected to harassment of a sexual nature by pupils and several specific incidents have been referred to in the submissions and documented here. The respondent is in agreement that many of the incidents took place as described by the claimants but argues that (a) the school is not vicariously liable for the acts of pupils at the school and (b) without prejudice to that argument, that school management took the appropriate action in each case that was brought to its attention. As the perpetrators of the offending behaviour were pupils of the school, these complaints differ significantly from complaints of sexual harassment by other employees which typically come before Equality Officers. In considering whether or not an employer is vicariously liable for acts of sexual harassment perpetrated against an employee, Equality Officers consider the following questions:
(a) did the act constitute ‘… unwanted conduct of a sexual nature, or other conduct based on sex affecting dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct’ (definition of sexual harassment used by Costello J in Health Board v. B.C. and the Labour Court);
(b) is the employer vicariously liable for the act having regard to the decision of Costello J in the above case where he found ‘an employer is vicariously liable where the act is committed by his employee within the scope of his employment’.
The documentary evidence provided by the claimants and Respondent and examined by the Equality Officer clearly shows that the conduct complained of was sexual in nature, both verbally and graphically. The conduct was unwanted and affected the dignity of the claimants. I am satisfied therefore that the conduct complained of is sexual harassment as defined by Costello J at (a) above and has a detrimental effect on the quality of the working environment *175 for those female teachers at whom it was directed. In relation to where responsibility lies for the control of such behaviour, the respondent has argued that the test at (b) above is the appropriate test in the present case and that as no employment relationship exists between the school and its pupils, the school cannot be held vicariously liable for any acts of sexual harassment perpetrated by pupils. In the case of Health Board v. BC and the Labour Court, the act complained of amounted to a serious sexual assault by two employees against a fellow employee. I am satisfied that the circumstances pertaining in the present complaints differ significantly from those applying at (b) above and that the test applied by Costello J is not appropriate in this case. The perpetrators of the offending acts are not employees but pupils at the school, persons over whom the school, in the words of the principal, acts in loco parentis and over whom the school has authority while they are engaged in School activities, whether on the school premises or elsewhere. The acts complained of are acts of gross misbehaviour by adolescent male pupils directed at female teachers which, if uncorrected, would in all likelihood continue, causing continued distress to female teachers. The board of management is clearly responsible for the disciplinary and working environment at the school and is therefore in a position to exercise control over such behaviour. I note also that the Labour Court has found an employer responsible for sexual harassment perpetrated by a non-employee against an employee where the employer had control over the non-employee as in the case of A Worker v. A Company (EEO 3/91).
The Labour Court has stated, in the case of A Garage Proprietor v. A Worker (EEO 2/85) that ‘freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. The court will accordingly, treat any denial of that freedom as discrimination within the terms of the Employment Equality Act 1977’. Having found that the acts complained of constitute sexual harassment, that they concern the discipline of pupils and are matters within the control of the board of management, I must consider whether or not the board: (i) has taken all reasonable steps to address complaints of sexual harassment brought to its attention by teachers, (ii) treated sympathetically any distress suffered by female employees as a result of the sexual harassment and (iii) taken all reasonable steps to prevent such behaviour recurring.
As has been argued by the respondent, the school has a dual responsibility, i.e. to pupils and staff. It is a function of a school to provide moral, spiritual, social and personal direction to pupils as section 9(d) of the Education Act 1998 (No.51 of 1998) sets out:
9.— A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall use its available resources to—
(d) promote the moral, spiritual, social and personal development *176 of students and provide health education for them, in consultation with their parents, having regard to the characteristic spirit of the school,
I consider that in responding to disciplinary matters, a school must balance these responsibilities and endeavour to correct misbehaviour so that a pupil learns that certain behaviour is neither socially nor legally acceptable in society.
The claimants have outlined in detail the various incidents to which they were subjected since 1996. The respondent has documented in detail the manner in which those complaints of which they were made aware were dealt with by school management. On two occasions complaints resulted in pupils transferring to other schools, one involved a pupil being suspended for a period of five weeks and another involved a pupil being suspended for two weeks (the union argued that some of the suspension period overlapped with the mid-tenn break but I note that the pupil had already been suspended for in excess of a week before the board meeting). The principal, in his submission, pointed out that the union ignored the fact that a pupil had transferred to another school on foot of a particular complaint. Having considered the detailed evidence relating to the specific incidents and the response of management, I am satisfied that the disciplinary action taken by management against the perpetrators of acts of sexual harassment was what might reasonably be expected in the circumstances of the individual cases referred to.
The union and the Authority argue that the measures taken by management were inadequate in terms of education and prevention. They point to the absence of any code of practice, policy statement or guidelines on sexual harassment. I note that the school’s ‘Code of Behaviour and Discipline’ has been amended to include a reference to sexual harassment under the section headed ‘Respect’. The paragraph reads:
Harassment of any kind, including sexual harassment, towards teachers or students, whether by innuendo, comment or action, will be regarded as serious or gross misbehaviour and will incur serious sanctions.
The respondent referred to efforts by the principal to arrive at a consensus approach to the issue of sexual harassment. These include efforts from end December 1997 to establish a sub-committee to review all aspects of discipline, including sexual harassment, a one-day seminar on ‘Positive Discipline’ in February 1998, the issue of a detailed questionnaire to all staff in May 1998 on the broad question of discipline and sexual harassment and the provision of a one-day seminar on sexual harassment facilitated by a recognised expert in the area (invitation issued 21 July 1998). Arising from this seminar, work com *177 menced on the drawing up of a policy document on sexual harassment. The respondent pointed out that those involved in complaints of sexual harassment did not co-operate with the completion of the questionnaire. All teachers were invited in September 1998 to make written submissions regarding what they would like to see included in any new policy document but management received no responses. The respondent pointed out that it was only after renewed approaches from management that a teacher (the first named claimant) agreed in October 1998 to participate in the new sub-committee on sexual harassment. Pressed at the hearing as to why teaching staff and in particular female teachers who were the victims of sexual harassment in the classroom did not engage in management’s efforts to develop a consensus approach to the problem, the claimants’ representative indicated that the claimants had no confidence in the school’s initiatives which were a belated response in the light of the pending investigation by the Labour Court and describes the questionnaire as ‘woefully inadequate’ in the circumstances prevailing. I am satisfied however that a number of these measures were underway at the time of the referral of the complaints and were indicative of the respondent’s efforts to address the problem.
The respondent has pointed out the unique relationship between management, teachers and their pupils and I accept the respondent’s argument that the teachers themselves have a role to play in the application of discipline in the classroom and in the development of a policy on sexual harassment. It is clear from the evidence presented that a difficult relationship exists in the school between the claimants and the principal and between the union representative and the principal. It is clear that as a consequence, communications on industrial relations matters and matters of equal treatment are fraught with difficulty. I consider that this difficult relationship has impacted negatively on management’s efforts to develop a consensus approach to the problem. Complaints of sexual harassment were dealt with as disciplinary matters coming within the scope of the school’s disciplinary procedures and while the school had not implemented any new preventative policy or additional guidelines targeting sexual harassment up to the time of the first referral to the Labour Court by the first named claimant in April 1998, I do not consider the absence of such a policy in itself to be adequate grounds for a finding of discrimination against the school. The union and the Authority have challenged the adequacy of the school’s disciplinary code to deal with complaints of sexual harassment; however I am satisfied that on balance, the school has taken all reasonably practicable steps in relation to complaints of sexual harassment and the implementation of a policy of education and prevention. I note that the policy document on sexual harassment was nearing completion at the time of the hearings. It must follow from the foregoing that the Authority has not demonstrated that the school generally discriminates against female employees.
The respondent included in its submission, a copy of a letter from the prin *178 cipal to a prospective facilitator for a one-day seminar on sexual harassment. The letter, dated 28 July 1998 was presented as evidence of the school’s attempts to address the issue of sexual harassment in a constructive manner. However within the letter, the principal states by way of background information, that a female teacher who was unhappy with the board of management’s response to a particular incident, referred the matter to the Employment Equality Agency who investigated the matter and found no cause for complaint. He goes on to say also that following a number of meetings with management and staff, the union referred the matter to the Labour Court and that ‘while this move was welcomed by the board of management, it would appear that the Labour Court sees no ground for complaint’. The Equality Officer must point out that the references to the EEA and the Labour Court are factually incorrect. The Labour Court referred the first named claimant complaint for investigation by an Equality Officer on 16 April 1998 and the school was notified on 6 May 1998.
The principal acknowledged this notification on 11 May 1998 and advised the then Director of the Equality Service of his travel plans for June and July of 1998 should the Director wish to contact him. Contrary to being satisfied with its enquiries, the EEA referred its section 20 complaint to the Labour Court a number of weeks later on 24 August 1998. I consider that inaccuracies such as the above contribute to the general atmosphere in which female teachers who consider themselves the victims of sexual harassment by pupils believe that their complaints are not being taken seriously by management.
I will now address the complaints that the claimants were penalised by the school for having referred complaints of discrimination to the Labour Court. The principal in his submission attempts to throw some light on the background to the present dispute. I note that the claimants were appointed in August of 1994 and 1995, five and six years after the principal’s appointment. It is clear from the principal’s comments that his attitude towards complaints of sexual harassment from the claimants is influenced by what he perceives as lingering resentment to his appointment as principal at least five years prior to the claimants commencing employment with the school and seven years prior to the first of the incidents taking place. The principal states that it is the view of the board of management that all ‘internal channels should be fully explored before seeking help from outside’. This I consider is a statement to the effect that any referral of a complaint of unequal treatment on grounds of gender by a member of staff to the statutory bodies charged with investigating such complaints, prior to the board being satisfied that all ‘internal channels’ have been fully explored to their satisfaction, will meet with management’s disapproval. In a letter to the union, the chairman stated ‘unfortunately, one of the main drawbacks in dealing with the situation so far has been the very fact that some staff members have bypassed the principal and relied almost completely on outside *179 groups or individuals to deal with the matter’. It is clear from the evidence that management were not satisfied that ‘internal channels’ had been fully explored.
There is a conflict of evidence between the claimants and the respondent in relation to the treatment of the claimants on foot of bringing complaints of sexual harassment to the attention of management. The second named claimant’s complaint of victimisation is based on a number of interactions with the principal including:
— the principal’s comments to her at a meeting on 2 April 1998 about teachers going to the union behind his back, about temporary teachers being misled by permanent teachers and other matters;
— her treatment in front of her class by the principal on her return from the Labour Court hearing on 28 September 1998 and at a meeting in his office the following day;
— the principal’s comments at a staff meeting on 1 October 1998 in relation to complaints of sexual harassment, timekeeping and the likelihood that her post would no longer exist the following year;
— a dispute with the principal in relation to a sick day, the principal’s comments about the quality of her work and uncertainty about her re-appointment;
— being asked by the principal in front of pupils in an exam hall to recount the words used by a pupil in a particular incident.
Both claimants refer to the posting of a notice in the staffroom on 13 December 1999, the day before the first hearing, inviting staff to attend the hearing. The posting of the notice is undisputed and the Respondent’s legal representative at the hearing said that the principal was unaware that an Equality Officer’s hearing is strictly private to the parties. The Respondent however disputes the second named claimant’s recollection of the various other incidents cited in the union submission. The principal’s recollection of the meeting on 2 April 1998 is that the meeting was non-confrontational and that the second named claimant was satisfied when she left the meeting. In relation to events after the Labour Court hearing, the principal argues that as no teacher was in attendance in the second named claimant’s class he had to take charge and rejects the suggestion that his comments about punctuality were directed at the second named claimant. The principal also rejects the suggestion that he cast a doubt over the second named claimant’s re-appointment but stressed at the hearing that he was not in a position to confirm her re-appointment until he had written authorisation from the Department of Education and Science. The chairman of the board of management has defended the conduct of the principal at all times and suggested that a grave injustice was being done to the principal in all of this. I am however satisfied that the second named claimant’s interpretation of events and feeling of distress is supported by the background context as presented in the respondent’s own submissions and culminating in the posting of *180 the notice prior to the hearing. I am satisfied that the second named claimant suffered considerable stress and anxiety over these events. I am further satisfied that the posting of the notice prior to the hearing had one purpose only, i.e. to expose and embarrass the claimants in the eyes of their colleagues as being the female teachers who were bringing complaints of sexual harassment against the school and to add to their trauma on the day. I am satisfied that this action was a gross intrusion in the right of the claimants to bring a complaint before an Equality Officer without fear of unfavourable consequences or victimisation.
Recommendation
On the basis of the foregoing I find:
(i) that the respondent did not discriminate against the claimants on the basis of their sex in terms of section 2(a) and in contravention of the provisions of section 3 of the Employment Equality Act 1977;
(ii) that the respondent did discriminate against the claimants in terms of section 2(d) and in contravention of the provisions of section 3 of the Employment Equality Act 1977;
(iii) that the respondent does not generally discriminate against female employees contrary to the 1977 Act as alleged by the Authority.
Having found that the claimants were penalised by the school within the meaning of section 2(d) and contrary to section 3 of the Employment Equality Act 1977 it remains for me to deal with the question of remedial action. I recommend that the school pay the first named claimant £7,000 and pay the second named claimant £12,000 in compensation for the distress that they have suffered as a result of the penalisation and in referring their complaints for investigation.
William McCamley v Dublin Bus
EDA 164
Labour Court
12 February 2015
[2016] 27 E.L.R. 81
Background
This is an appeal of Equality Officer (now known as Adjudication Officer Decision No: DEC-E2015-100). A Labour Court hearing took place on 12 February 2015. The following is the court’s determination.
Determination
This is an appeal by William McCamley against the decision of the Equality Tribunal in his claims of harassment and victimisation on grounds of race and religion against Dublin Bus. In this Determination the parties are referred to as they were at first instance. Hence, Mr McCamley is referred to as the complainant and Dublin Bus is referred to as the respondent.
The case was referred to the Equality Tribunal on 12 June 2012 under the Employment Equality Acts 1998-2011 (hereafter “the Acts”). It was heard by an Equality Officer on 30 July 2014. The decision under appeal was issued on 30 September 2015. The Equality Officer found against the complainant.
Material facts
The material facts of the case are not seriously in dispute and can be briefly stated.
The complainant is an employee of the respondent. He is also an activist in SIPTU. In that capacity he represented SIPTU in dealing with industrial relations issues arising within the employment. The NBRU also represents drivers employed by the respondent. It is common case that there has been a history of inter-union rivalry between these unions within the respondent company which, at times, has manifested itself in a level of antipathy between some of their respective members.
Following a conciliation conference at the then LRC in a dispute involving the respondent and both trade unions, a member of the NBRU, who was also an employee of the respondent, posted abusive comments concerning the complainant on Facebook. These comments referred to the complainant in particularly disparaging and offensive terms which related to a religion and a nationality imputed to him (which are not his actual religion or his actual nationality). The offending comments were posted on or about 1 March 2012. This incident will be referred to in this determination as “the Facebook incident”.
The complainant referred a complaint concerning this posting to his manager in reliance on the respondent’s dignity at work policy. She responded that as the matter complained of occurred outside the workplace the company could not take any action under the policy in pursuance of which the complaint was referred.
The complainant appealed against the refusal of the local manager to address his grievance. The matter eventually came before the head of human resources of the respondent. He took a different view to that taken by the local manager. He dealt with the complaint in reliance on rule 18 of the Company Rule Book which provides: *84
“Employees shall not conduct themselves in any manner prejudicial to the reputation and welfare of fellow employees.”
The head of human resources directed that a disciplinary process be initiated against the author of the offending comments. This resulted in a disciplinary sanction being imposed on the employee concerned. There was a significant delay between the reporting of the offending comments and the initiation of the disciplinary process. By letter dated 3 September 2012, the head of human resources wrote to the complainant informing him that the author of the comments had admitted posting them on Facebook and had been “charged” under Rule 18 with conduct prejudicial to another employee. The head of human resources explained the delay by referring to the absence of the employee concerned on sick leave in consequence of which he was unavailable for interview.
The complainant relies on earlier incidents of harassment which he claims are part of a pattern of discriminatory treatment against him by fellow employees. In particular he relies on an incident that occurred in 2008 in which he was the subject of an assault. That incident occurred on an occasion when he was attending a function hosted by the respondent. The complainant told the court that he believed that the assault was motivated by an imputation to him of a certain religious affiliation because of words addressed to him by the assailant before the assault occurred. He claims that this incident and the incidents referred to above form part of a continuum of harassment. This occurrence will be referred to as “the 2008 incident”.
The complainant further relies on an incident surrounding the placing of graffiti of a personalised and highly offensive nature about him in a staff toilet. This incident appears to have occurred on or about 20 June 2012. The complainant contends that it took the respondent three weeks to have this graffiti removed. It appears from the complainant’s submission that he is relying on this occurrence and a further incident of harassment as an act of victimisation. This will be referred to as “the graffiti incident”.
Finally, the complainant refers to an incident in which offensive material was posted on Facebook by an employee of the respondent which was directed at two managers. In that case the employees concerned were disciplined immediately. He relies on the different approach of the respondent in his case as an act of discrimination.
Position of the parties
The complainant contends that the offending publications and conduct constitute harassment as that term is defined by the statute. He further contends that he suffered the harassment in the course of his employment in consequence of which the respondent is fixed with liability under the Acts. It is also the complainant’s case that the respondent had failed to take effective measures to prevent the *85 harassment and cannot, therefore, avail of the defence provided by the Acts.
The respondent accepts that the offending comments were published in relation to the complainant and that the author of the comments was an employee of the respondent. However, the respondent denied that the complainant was harassed in the course of his employment. It was the respondent’s position that the offending conduct occurred in circumstances unrelated to the complainant’s employment. In these circumstances the respondent submitted that the court has no jurisdiction to entertain these complaints.
In relation to the 2008 incident the respondent contends that they are outside the statutory time-limit and are likewise outside the scope of the court’s jurisdiction.
In relation to the complaints concerning graffiti, the respondent submitted that following the complaint received from the complainant the defilements were removed as soon as possible and that its response in this case was no different to that which it adopted in all other similar cases.
Legal principles
The first issue arising in the case is whether the Facebook incident constituted discrimination within the meaning of s. 14A of the Act. That section provides:
For the purposes of this Act, where—
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or
(b) without prejudice to the generality of paragraph (a)—
(i) such harassment has occurred, and
(ii) either—
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) *86 also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.
In this section ‘employee’ includes an individual who is—
(a) seeking or using any service provided by an employment agency, and
(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),
and accordingly any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.
(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’, or, as the case may be, section 12.
(a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
What is complained of in this case comes within the ambit of subs.(1)(a) of this section. There was no evidence that the complainant was treated less favourably in the course of his employment for having accepted or rejected the harassment. Consequently subs. 1(b) is not applicable. This is a point of some relevance when considering whether the respondent can avail of the defence provided by subs. (2) of s.14A. Where subs. 1(b) applies, subs.(2)(b) provides, in effect, that in order to make out a defence the employer must show that, in addition to having preventative measures in place, it took measures to reverse the effects of any adverse treatment suffered by the complainant in consequence of having accepted or rejected the harassment.
*87
In this case the defence available to the respondent is that provided for at s.14A(2)(a). Accordingly, in order to avail of that defence the respondent must show that it took such steps as were reasonably practicable to prevent the harasser from harassing the victim or any class of persons which includes the victim. The applicability of that defence on the facts of the instant case will be considered later in this Determination.
The liability that subs.(1) of this section imposes on employers is not akin to vicarious liability in common law. Rather, this provision applies a form of constructive direct liability on an employer where an employee is harassed by another employee, or a person in a category referred to at subs.1(a)(ii) or (iii) of s.14A. That is clear from the use of the words “the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment” in the final sentence of subs.(1) of that section.
In the course of employment – Facebook incident
Unlike vicarious liability, in the case of harassment committed by an employee on another employee there is no requirement to show that the wrongdoer was acting in the course, or within the scope, of his or her employment. Hence, it matters not that the harasser was off duty or at home when he posted the offending material. It is, however, essential that the victim suffered the harassment in the course of his or her employment.
It follows that in the instant case the focus of the court’s enquiry must be on whether the complainant suffered the harmful effects of the conduct complained of while in the course of his employment.
The meaning to be ascribed to the expression “in the course of employment” was judicially considered by the court of Appeal for England and Wales in Jones v Tower Boot Co Ltd [1997] I.C.R. 254 in which the court was required to construe a similarly worded provision at s.32 of the UK Race Relations Act 1976. Here, having reviewed a line of relevant authorities Waite L.J. said the following:
“The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words ‘in the course of his employment’ in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstances which is liable to occur in particular instances — within or without the workplace, in or out of uniform, in or out of rest-breaks — all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. The application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort.”
*88
As can be seen from that passage, Waite L.J. recognised that there are a variety of situations in which it can be held that a person is engaged in the course of his or her employment that go beyond the time spent actually in the workplace or performing the duties and tasks associated with the person’s occupation. Hence, it has been held that an employer can be liable for harassment that occurred in situations such as where the victim is attending a social function organised or sponsored by the employer or is attending meetings or conferences. That is acknowledged by the respondent and it is also made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208 of 2012), which provides:
“The scope of the sexual harassment and harassment provisions extend beyond the workplace, for example to conferences and training that occur outside the workplace. It may also extend to work-related social events.”
There must, however, be some discernible connection between the harassment and the victim’s employment in the sense that the victim suffered the harmful effects of the harassment while he or she was engaged in activity authorised by the employer.
Discussion
In the instant case it appears clear that the offending comments posted in the Facebook incident were directed at the complainant in his capacity as a representative of a group or body of workers employed by the respondent. He was clearly authorised by the respondent to act in that capacity. There can be no doubt that the purpose and effect of the publications was to disparage and ridicule the complainant in the eyes of his colleagues. In these circumstances it follows that, in the words of s. 14A(7)(a) of the Act, it was conduct having “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Moreover, it appears clear from the context and content of the offending comments that their harmful effects were intended to impact on the complainant while exercising his role as a worker representative; a role that he performed in the course of his employment.
It follows that the posting of the offending comments constituted harassment of the complainant within the meaning of s. 14A(7) of the Act. Consequently the employer is rendered liable for that harassment unless it can avail of the defence provided by s. 14A(2) of the Act.
2008 incident – time-limit
The complainant gave evidence in relation to the 2008 incident. That incident occurred when the complainant was attending an event organised by the *89 respondent and he was doing so in his capacity as an employee of the respondent. He was physically assaulted by another employee. As a prelude to the attack this employee addressed the complainant using a crude and vulgar expression having a religious connotation (details of which were given in evidence). The incident was witnessed by a member of the respondent’s management. No action was taken against the perpetrator of the assault. For reasons that were explained to the court the complainant did not make a formal complaint to the respondent in relation to this incident.
This incident occurred some four years before the within complaint was referred to the Equality Tribunal. Prima facie, it was at that stage statute-barred. However, the complainant contends that it should be considered a part of a continuum of discriminatory treatment to which he was subjected and that the time-limit started to run on the date of the last act of harassment, namely the Facebook incident, 1 March 2012.
Both s.77(5) and s.77(6A) of the Act provide for circumstances in which acts of discrimination that occurred outside the normal time-limit can nonetheless be relied upon where they form part of what is conveniently referred to as continuing discrimination.
Section 77(5)(a) of the Acts provides:
“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
Section 77(6A) provides:
“For the purposes of this section—
(a) discrimination or victimisation occurs—
(i) if the act constituting it extends over a period, at the end of the period…,”
The application of these provisions was extensively considered by this Court in Determination EDA1124 Hurley v Co Cork VEC. It is appropriate to set out the relevant passage in that Determination in full:
“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] I.L.R.M. 387). This subsection would apply where, *90 for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time-limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the complainant’s complaint may not be taken into account when determining whether there was a continuing act (see the decision of the court of Appeal for England and Wales in Robertson v Bexley Community Centre [2003] I.R.L.R. 434, at para.21).
Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. The circumstances in which a corresponding provision of UK law can come into play was considered by the court of Appeal in Arthur v London Eastern Railway Ltd [2007] I.R.L.R. 58. Here the court was concerned with a claim of victimisation in the form of a series of acts directed against the complainant, some inside the three-month time limit provided at s.48 of the UK Employment Rights Act 1996, and some outside that limit. In considering if the time-limit in respect of all of the acts relied upon stated to run from the last such act Mummery L.J. said:
‘The provision in s.48(3) regarding a complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.’”
The complainant relied on s.77(6A) of the Act in advancing his claim that the 2008 incident and the Facebook incident in 2012 should properly be regarded as separate manifestations of continuing discrimination in the nature of harassment and so treated as within the time-limit when he made his complaint on 12 June 2012. As is clear from the decision in Hurley v Count Cork VEC,s.77(6A) applies *91 where the respondent has maintained and kept in force a discriminatory regime, rule, practice or principle which extends over a period. It is not contended, nor is there any evidence to suggest, that the respondent maintained such a rule, practice or principle directed at or facilitating the harassing the complainant. Consequently, s.77(6A) has no application in this case.
For the sake of completeness the court has considered if, on the fact of this case, both the 2008 incident and the Facebook incident can be considered as in time by application of s.77(5) of the Act. That requires a consideration of whether both incidents were sufficiently connected and can properly be regarded as separate manifestations of continuing harassment, so that the time-limit started to run from the date of the last such incident (the Facebook incident).
The 2008 incident involved an assault on the complainant by a named individual. The Facebook incident occurred some four years later. That posting was made by a different person than the assailant in the 2008 incident. There was no evidence proffered of any other incidents of harassment of the complainant in the intervening period. The 2008 incident was also different in its nature and character than the Facebook incident. In these circumstances, and having regard to the length of time between both incidents, the court can see no basis upon which it could be held that they were sufficiently connected so as to be characterised as separate manifestations of the same harassment. Consequently the court is satisfied that they do not constitute a continuum of the harassment for the purpose of s.77(5) of the Act. Accordingly the court must hold that the 2008 incident was a stand-alone occurrence and that the complaint in relation to that incident was presented outside the statutory time-limit and is statute-barred.
Graffiti incident
This incident relates to the placing of graffiti in a toilet on the respondent’s premises which was disparaging of the complainant. On becoming aware of the presence of this graffiti the complainant reported it to his manager and asked that it be removed. According to the complainant, it was some six days after he made the complaint that the graffiti was removed. The complainant became aware of the graffiti on or about 20 June 2012. The complainant was unaware of when the offending graffiti was placed in the toilet.
It the course of the appeal it became clear that this incident occurred after the within complaint was referred to the Equality Tribunal. Consequently, it could not have been comprehended by that complaint. It appears that this incident was first raised in the written submissions filed on behalf of the complainant with the Equality Tribunal. Those submissions were received by the Equality Tribunal in 2014. In so far as the filing of the submissions constituted the referral of this aspect of the complaint, it was then out of time and statute-barred. It follows that this aspect of the complainant’s complaint was not properly before Equality Tribunal and it cannot be properly before the court in this appeal.
*92
Different treatment in the case of two managers
In presenting his case to the court the complainant referred to an incident in which an employee posted offending comments on social media concerning two managers of the respondent. In that case immediate action was taken by the respondent to address the incident through its disciplinary procedures. He contrasts the treatment of his complaint with that of the respondent in the case of the managers in question.
There was no evidence proffered, nor was it otherwise suggested, that if there was a difference in treatment in relation how these complaints and those of the complainant were processed (and the court makes no such finding) that it was on grounds of either religion or nationality. Accordingly, this matter could not come within the scope of the within complaint.
Defence
Section 14A(2) provides an employer, who would otherwise be liable for harassment by application of subs.(1) of that section, with a full defence in defined circumstances. In order to avail of the defence, the employer must demonstrate that preventative measures were taken before the occurrence of the offending conduct, occurred. The taking of post hoc action in response to a complaint does not make out the defence.
The respondent had a policy against harassment and sexual harassment at work. But it did not contain a provision specifically directed at preventing harassment through the use of social media at the material time, although it put such a policy in place later. Moreover, the initial response of the complainant’s manager was to deny any responsibility for what occurred on the basis that the respondent’s dignity at work policy did not cover this type of conduct. The complainant appealed to the respondent’s head of human resources against the refusal of the local manager to address his complaints. The head of human resources recognised that the type of conduct giving rise to the Facebook incident was in fact prohibited under rule 18 of the company rules as conduct “prejudicial to the reputation and welfare of fellow employees”.
That rule was invoked against the harasser and a disciplinary sanction was imposed against him. There was a delay of some months between the raising of the matter with the head of human resources and the completion of the disciplinary process. However, that was attributable to the absence of the employee concerned on sick leave in the intervening period.
While rule 18 predates and is not part of the respondent’s dignity at work policy, the court was told in evidence by the head of human resources that it is ascribed a wide ambit and is frequently invoked to deal with any form of offensive conduct perpetrated by one employee on another. Both the head of human resources and the complainant told the court that the rule book is provided to all employees on commencing employment and that its content is well-known *93 by all employees.
This rule may not be an adequate substitute for a well-defined policy against the use of social media as an instrument of harassment (which the respondent now has in place). But it is, nonetheless, a comprehensive provision directed at protecting employees from any form of prejudicial or harmful treatment by fellow employees. As this case demonstrates, that can include harassment or discriminatory treatment on any of the grounds prohibited by the Acts by whatever mode it is perpetrated.
Outcome
The court accepts that in the Facebook incident the complainant was subjected to wholly unacceptable personalised abuse in the course of his employment that no worker should be expected to tolerate. However, the net question that arises for consideration by the court is whether the respondent can be held liable in law for what occurred. Having regard to all of the evidence before it, the court has concluded that the respondent can avail of the defence that the Act provides at s.14A(2). Accordingly the respondent cannot be fixed with liability.
In these circumstances the court must affirm the decision of the Equality Tribunal and disallow the appeal.
Barbara Atkinson v Hugh Carty & Others
No. 2001/04860
Circuit Court
6 May 2004
[2005] 16 E.L.R. 1
( Delahunt J.)
DELAHUNT J.
delivered her judgment on May 6, 2004 saying: This matter comes before the court by way of the plaintiff’s application for damages for breach of contract, breach of duty including breach of statutory duty and ancillary reliefs arising from her employment with the defendants. The plaintiff relied in particular on the failure of the defendants to provide any safe or proper systems of work for the plaintiff pursuant to the Safety, Health and Welfare at Work Act 1989. A full and comprehensive defence was filed denying all allegations and pleading contributory negligence arising from the plaintiff’s claims. It was further denied by the defendants that they were responsible for the acts of an independent contractor, Mr John Mahon, whom the plaintiff claimed sexually assaulted and harassed her during the course of her employment with the defendants. The contributory negligence alleged related to the plaintiff’s failure to make any or any adequate complaint to the defendants.
The plaintiff commenced employment with the defendants in or around 1987 as a legal accountant. She was given a document setting out her terms and conditions of employment, however this document was not signed or dated. According to the defendants, the plaintiff was the only employee to receive this document despite there being a statutory obligation for the defendants to provide same to all employees. These terms and conditions of employment required the plaintiff to report to Messers Hugh Carty, John Carty and John Mahon.
The plaintiff began to experience problems with Mr Mahon not long after she commenced employment. Mr Mahon was not an employee of the defendants but an independent contractor who provided accountancy services to the defendants. The practice was for Mr Mahon to call on various days and at various times to the office of the plaintiff. The plaintiff objected to the unannounced and irregular nature of Mr Mahon’s visits. However the defendants *3 directed that the plaintiff should comply with Mr Mahon’s visits, that they were satisfied with the arrangement they had in place with Mr Mahon and they were entitled to insist on same.
During the 1990s, the plaintiff alleges an unsavoury element commenced concerning her relationship with Mr Mahon when unsafe and unwelcome sexual elements began to occur. In or around 1997–98 these problems became more severe culminating in the plaintiff making a written complaint in or around September 2000 to the defendants. No complaint had been made prior to this date. The plaintiff gave evidence stating that she felt she could not complain due to the deterioration of her relationship with the managing partner, Mr Hugh Carty. She felt that she had been bullied by Mr Hugh Carty and furthermore the fact that Mr Mahon was a close friend of Mr Hugh Carty’s meant that she felt unable to make a complaint.
The defendants deny all allegations of bullying. Mr Hugh Carty stated that they had an open door policy in operation in the office and that any member of staff was free to go directly to himself or his secretary at all times in relation to any employment grievance that might arise. This was not contained in any written procedure or policy, however Mr Hugh Carty gave evidence to the effect that the open door policy operated in practice.
I am of the view that the evidence that the plaintiff gave in relation to her difficulties with Mr Mahon is credible. I note that Mr Mahon did not give evidence. However a former employee who was employed at the time that we are concerned with, Ms Mary Kane, did give evidence that corroborated the plaintiff’s complaints against Mr Mahon, albeit post-termination of the plaintiff’s employment.
However what is of crucial importance here is that an employer is obliged to provide a safe place of work, a safe system of work and a safe working environment. The onus is on the employer by law to provide for same.
I do not accept that the plaintiff was bullied in the course of her employment by Mr Hugh Carty in the manner alleged, but I do believe that the plaintiff suffered a serious case of sexual harassment.
I note that there were no written procedures in place to provide the plaintiff with an avenue to seek redress. It is not sufficient for the defendants to plead that no amount of paper compliance would have helped in the case of the plaintiff. The failure of the defendants to have in place adequate procedures renders them liable and by reason of their failure to fulfill their statutory obligations they are responsible and cannot plead immunity from same simply because the plaintiff failed to make a complaint.
Furthermore I am satisfied that the defendants are responsible for the actions of Mr Mahon and that the defendants are correctly before the court.
In relation to the investigation which the defendant claims they conducted in a manner that complied fully with the requirements of natural justice, this *4 court is of the view that that purported investigation was so flawed that it significantly exacerbated problems for the plaintiff. On September 5, 2000, the defendants adopted what was a perfectly reasonable approach confirmed by the memo of the meeting that took place between Messers Hugh Carty, John Carty and the plaintiff. At the said meeting it was agreed that there would be an independent investigation carried out to examine the plaintiff’s allegations. However after this was agreed, Mr Hugh Carty subsequently decided that he would conduct the investigation himself rather than have it independently investigated.
The investigation was flawed for a number of reasons. First, Mr Carty was investigating a close friend. Secondly, the plaintiff was provided no opportunity in the course of the investigation to respond either verbally or in writing to matters arising. Thirdly, the plaintiff was not furnished with details of the responses of any other person interviewed in the course of the investigation. Fourthly, Mr Carty continued with the investigation whilst at the same time having serious professional difficulties with the plaintiff in relation to the running of his office.
I am finding for the plaintiff arising from the defendant’s breach of statutory and contractual duties towards her.
However I do have some sympathy for the defendant as the plaintiff failed to make them aware of her difficulties until September of 2000 even though it is clear from her evidence that she was aware in or around 1997 that she was being sexually harassed in the legal sense as a result of information supplied to her by her husband about the sexual harassment policy that applied in his employment. From that time, the plaintiff was in a position to do something as regards the sexual harassment but she failed to do so for another two years.
I am satisfied that the plaintiff has suffered deep psychological trauma which has prevented her from reverting to her qualified employment. Her psychiatrist, Dr Leader, is of the view that the plaintiff will be unable to work in her chosen profession again. Dr Leader also gave evidence stating that the legal process has had a bad effect on the plaintiff in relation to the trauma suffered. I note that Dr Leader’s evidence is based on two reviews and no treatment. The defendants’ medical advisor is of the view that within a period of nine to 12 months, the plaintiff will recover fully if she continues her treatment.
It would appear that the plaintiff will achieve recovery within a period of five years after her making the complaint to the defendants.
I am therefore assessing damages in the amount of €40,000 for general damages, €79,000 for special damages to date and €18,000 for loss and damage into the future. I am of the view that the plaintiff is guilty of contributory negligence arising from her failure to act sooner than she did, and I assess that
Costs are to be awarded to the plaintiff.
A stay is to be granted on the order pending an appeal conditional on the sum of €15,000 being paid to the plaintiff before the appeal is lodged.
Una Ruffley v The Board of Management St Anne’s School
[2014] IEHC 235 (09 May 2014)
JUDGMENT of O’Neill J. delivered on the 9th day of May 2014
1. The plaintiff in this case sues the defendants, her employers, for damages for bullying and harassment which, she claims, occurred between 14th September 2009, and 27th September 2010, in the course of her work as a Special Needs Assistant (SNA) in the defendants’ national school known as St. Anne’s located at the Curragh, County Kildare.
2. ‘Workplace Bullying’ is defined in para 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as follows:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
3. In Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 I.R. at 349, it was held by the Supreme Court that for conduct to amount to bullying it had to be repeated, inappropriate and undermining of the dignity of the employee at work. Furthermore, in his judgment, Fennelly J. said:
“The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.”
The facts relating to this matter are as follows.
4. The plaintiff, who was born in 1968, was employed by the defendants as a Special Needs Assistant at their school located in the Curragh, County Kildare. This school is a national school but caters exclusively for children with physical and/or intellectual disabilities, and unlike a normal national school, takes children from the age of four up to eighteen years. The school was founded by the KARE Organisation, which is an organisation of parents of children with physical and/or intellectual disabilities and has been in existence for nearly half a century and provides services, including schools, for children with those disabilities. Over the years since its inception, the range of services provided by the organisation has expanded greatly as has the organisation as an institution itself, now employing approximately 350 people. St. Anne’s School is under the patronage of the KARE Organisation and the Chief Executive Officer of KARE, Mr. Christy Lynch, is also the Chairman of the Board of Management of St. Anne’s School. As patron of the school, KARE also nominates one of the members to the Board.
5. St. Anne’s School caters for approximately 70 to 75 pupils and in 2009 had 14 teachers and 26 Special Needs Assistants. In addition, the school has available to it a variety of other quasi-medical services such as Occupational Therapy.
6. In the school there is what is known as the ‘Sensory Room’. The purpose and function of this room is to develop the sensory perception of pupils by exposing them to a variety of sensory experiences such as music, vibration, movement, light and colour. There is in the sensory a variety of equipment designed to promote the development of the child’s sensory perception. The room in question has been in existence for approximately five years. Prior to that, it had been used as a secure room to store the school’s computer equipment. The room is not a particularly large room, described by one witness as about 13ft x 10ft and does not have any windows. There is, apparently, a skylight. The door into the room is a metal door which could be locked from the outside with a key but at all times material to this case that was never used. There was, on the inside of the door, a lock which was described as similar to the lock on the inside of a toilet door which could be secured by twisting the lock to either open or close it. As will be seen, the controversy that arose in this case between the plaintiff and the defendants centred on the use of that lock.
7. Every pupil who used the Sensory Room had a programme designed for him or her by the Occupational Therapist and this would be carried out by a Special Needs Assistant or sometimes two Special Needs Assistants, depending on the pupil in question, under the direction of the class teacher. In general, only one pupil at a time would be accommodated in the Sensory Room, although it would appear sometimes there could be more than one pupil there at a given time. To successfully carry out the programme, it was desirable, if not necessary to ensure that during the programme there would not be distractions such as the intrusion of others, in particular, pupils coming in to the Sensory Room. Thus, it would appear to have been normal for the door to the Sensory Room to be kept closed whilst a pupil inside was going through a programme. At issue in this case was whether or not there was a common practice amongst SNAs of also locking the door whilst a pupil was going through his or her programme in the Sensory Room, using the lock on the inside of the door.
8. The plaintiff was employed by the defendants as a SNA from January 1999. From then until September 2009, it is commoncase that the plaintiff discharged her duty as an SNA in a satisfactory manner, enjoyed good relations with teachers, other SNAs and the Principal, Ms. Dempsey, and had never had any disciplinary issues or grievances during that 11-year period.
9. All of that changed on 14th September 2009.
10. On that day, the plaintiff was in the Sensory Room with a young boy after 1pm. Soon after the programme began, and when this pupil lay on a mat or mattress, he fell fast asleep. This was a most unusual occurrence for this pupil who suffered from ADHD, a condition which predisposed the pupil in question to hyperactivity rather than the reverse.
11. When he fell asleep, the plaintiff went to the telephone outside the Sensory Room a short distance away and telephoned the class teacher, Ms. Rachel Bramhall, for instructions. Ms. Bramhall instructed the plaintiff to allow the pupil to continue sleeping for a further period of 20 minutes before bringing him back to the class. In the meantime, Ms. Bramhall, being alarmed at this unusual development, rang the Principal, Ms. Dempsey, and asked her to check out the situation. Ms. Dempsey did that and when she approached the Sensory Room, she found the door locked and on her third attempt to gain entry, the door was opened by the plaintiff who readily accepted that the door had been locked. The question of the door being locked or otherwise was not discussed then. Ms. Dempsey confirmed the instructions given by Ms. Bramhall to allow the pupil to continue sleeping for a short period. This, the plaintiff did, and in due course brought the pupil back to the classroom in time for departure from school that day.
12. The following day, 15th September 2009, when the plaintiff came in to work, she was requested by the Principal, Ms. Dempsey, to come to her office which she did. When the plaintiff went to the Principal’s office, she was informed by the Principal that she was handling the matter in the context of the disciplinary procedure. The plaintiff’s evidence was that she was told she was being investigated. The plaintiff’s initial response, as noted by the Principal, was that she thought this was because the pupil was asleep but the Principal informed her that it was because she had locked the door with the pupil inside.
13. It would appear from the Principal’s note of this discussion that the plaintiff’s response to this was to say that she hoped that the Principal would be dealing with all the SNAs who did this. The Principal’s note of her response to this was that that was another issue for another time. The plaintiff was informed to come back to the Principal’s office at 2.30pm and she was advised by the Principal to bring somebody with her to the meeting.
14. The plaintiff, in her evidence, described herself as being shocked by this encounter, as it was her evidence, corroborated by other SNAs who gave evidence, that it was a common practice amongst the SNAs to lock the Sensory Room door whilst conducting a pupil’s programme and that no instruction had ever been given not to do this, and neither had any instruction been given to do this.
15. The plaintiff came to the meeting with the Principal at 2.30pm as arranged. The plaintiff was accompanied by Ms. Louise Webb, a colleague SNA, and the Principal had arranged for Rachel Bramhall, the teacher to whose classroom the plaintiff was attached at that time, also to attend.
16. In the course of this meeting, the plaintiff accepted that she had locked the Sensory Room door and that she had done this over several years. She explained that the reason for doing this was to prevent other children from entering the Sensory Room door whilst she was conducting a session with a pupil and also to prevent a pupil described as “a runner” from running out of the room while the programme equipment was being set up. She explained that she had not been told to lock the door by any teachers, nor had she ever been instructed not to lock the door. An issue arose in the discussion concerning a visit by the Principal to the Sensory Room in April 2009, when the Principal came into the room with a number of visitors. The plaintiff contended that the door had been locked on that occasion as well and that the plaintiff at that time was accompanied in the room by another SNA, Ms. Una O’Connell. The Principal asserted that the room had not been locked or that she was not aware that it was locked on that occasion, as if she had been so aware, she would have raised the matter with the plaintiff then.
17. It would appear from the Principal’s note of the meeting that the discussion then went on to consider the suitability of the programme for the child who was in the room asleep the previously day and who was “a runner”. There appears to have been some discussion as to what might happen in the event of an emergency.
18. The plaintiff’s evidence was that after this meeting, she felt greatly relieved because she felt her explanation of why she had locked the Sensory Room door had been accepted by the Principal and that was the end of the matter. The Principal’s note of this meeting, apart from mentioning, apparently in the course of the discussion, the suitability of the child’s programme and that it might need to be changed with an OT referral, does not make any mention of any contemplation of further action arising out of the matters discussed in the meeting. Specifically, the note makes no mention at all of any complaint by the plaintiff of any inadequacy in her training in the use of the Sensory Room or any need for further training in that regard or of any plan for such training.
19. The evidence of Ms. Dempsey, the Principal, was to the effect that at a meeting on 18th September 2009, with the plaintiff and the teacher, Rachel Bramhall, a process of training was settled. This involved a four-week period, during which the plaintiff, in carrying out the programme of the child who was the “runner”, would, on a weekly basis, fill in a form, indicating by a tick, the activities in the Sensory Room which this child accomplished, and at the end of the four-week period, there would be a review.
20. Ms. Dempsey gave evidence of handing to the plaintiff a letter dated 18th September 2009, which was in the following terms:
“Dear Una,
Further to our meeting regarding the incident during which you locked the door to the Sensory Room whilst you were inside with a pupil. The evidence has been reviewed and the situation has been considered.
You appear not to be clear about the protocol around the use of the Sensory Room. Because of that, we are not going to take disciplinary action. However, this is a serious situation and one for concern. You were informed that you are being formally counselled with regard to the incident.
To ensure that it does not happen again, we will put in place a series of procedures which will include the following:
1. The class teacher will discuss and work with you on the effective use of the Sensory Room. This will include a list of activities and procedures which you will carry out when using the room.
2. Activities performed be logged on a recording sheet.
3. The situation will be reviewed with you by the class teacher for a period of three months and this will be recorded on the staff review form.
If the required improvement is not made or if there is any such breach of discipline in any aspect of your work performance, this may result in disciplinary action.
I am available, should you wish, to discuss any of the above.
Yours sincerely,
Pauline Dempsey
Principal.”
21. The meeting which took place on 18th September 2009 was for the purpose of going through the programme of the child in question in the Sensory Room. It would appear from Ms. Bramhall’s evidence that the plaintiff brought this written programme to the meeting and the meeting seems to have consisted of taking the child through the programme to ascertain the suitability for the child of the various parts of the programme. In the course of doing this, it became apparent, as it had already been the experience of the plaintiff that the child was unwilling to get on the swing, notwithstanding that this was part of the programme. Ms. Bramhall’s evidence was to the effect that this failure or omission did not matter. Apart from the swing, it would appear that this child was able and willing to do all other parts of the programme, and thus, it was considered that there was no need to consult the Occupational Therapist for a change in the programme. It was agreed that there would be a four-week period during which the operation of the programme of this child by the plaintiff would be reviewed. Over the weekend, Ms. Bramhall drew up forms which listed all of the activities in the programme and it provided for the ticking of these activities on a daily basis, depending on whether or not they had been accomplished by the child.
22. At the end of the first week, namely, the Friday, and the following Monday, the plaintiff was out sick and was replaced by another SNA. In discussion with Ms. Bramhall, this SNA disclosed that she had succeeded in getting the child to use the swing. When the plaintiff returned, Ms. Bramhall told her of this development and encouraged the plaintiff to continue with it. According to the evidence of Ms. Bramhall, the plaintiff initially reported to Ms. Bramhall that she was not able to do this, but later, in the third week of the programme, she told Ms. Bramhall that she had persisted in trying and had succeeded in getting the child onto the swing, but it would appear sitting on it only and not standing or lying on it, the other two prescribed activities relating to the swing.
23. At the end of the four-week period, when Ms. Bramhall was conducting the anticipated review with the plaintiff, she noticed that the plaintiff had ticked the box on the forms for lying on the swing and she queried this with the plaintiff who, it would appear, promptly confirmed that this was wrong and sought Ms. Bramhall’s permission to change the form so as to make it accurate. Ms. Bramhall refused to allow her to do this and recorded this result on the review of the plaintiff’s performance as a “miscommunication”.
24. It is difficult to comprehend this refusal on the part of Ms. Bramhall, given that what was being recorded were the activities accomplished by the child in question with a view to assessing or reviewing the suitability of the programme for him, including the capacity or performance of the plaintiff in implementing that programme.
25. On 19th October 2009, a further meeting took place between the plaintiff, Ms. Bramhall and Ms. Dempsey for the purposes of considering Ms. Bramhall’s review of the plaintiff, recorded on an SNA staff assessment form. This form was completed by Ms. Bramhall at that time and it is not entirely clear from the evidence of Ms. Bramhall if she was doing this simply because she was leaving the school shortly, or whether it was for that reason and also, as the completion of a review of the plaintiff’s performance after this four-week period.
26. Whilst the plaintiff, in her evidence, described the events that occurred at this meeting as occurring at a meeting on 12th November 2009, I am satisfied that she is incorrect in that, and what she described as occurring at the meeting on 12th November 2009, occurred at the meeting on 19th October 2009. I am satisfied on the evidence that in the course of that meeting, the plaintiff was challenged by Ms. Dempsey for having initially recorded the child as using the swing, as erroneously, Ms. Dempsey thought he was not supposed to use the swing, and secondly, for filling out the form inaccurately.
27. I have no doubt that the plaintiff, having been treated in this way, was afflicted by an acute sense of unfairness and grievance and probably did react in a combative way by raising other issues with Ms. Dempsey. I am quite satisfied that the plaintiff felt she was being treated unfairly in this review and she made that apparent.
28. At this point, one must go back in time to 18th September 2009, and the letter of that date which Ms. Dempsey said she handed to the plaintiff on that date. In the context of the meeting of 15th September 2009, and also the meeting on 18th September 2009, at which the programme of the child was reviewed, the letter of 18th September 2009, both in its tone and content, seems strangely out of place. I am satisfied that the meeting of 15th September 2009 did not give rise to any kind of general consideration of a re-training of the plaintiff in the use of the Sensory Room. Insofar as any problem emerged from that meeting, apart from the locking of the door, it concerned solely the suitability of the programme of the child in question and whether or not it was the unsuitability of that programme that impelled the child to attempt to run from the Sensory Room. At this time, the plaintiff had been a SNA in the school for eleven years and no issues had arisen relating to her competence or training in the use of the Sensory Room. Given that the only issue which emerged in the meeting of 15th September 2009, related to the suitability of the child’s programme, it would seem remarkable if the overall competence and training of the plaintiff in the use of the Sensory Room arose for discussion. I am quite satisfied it did not and the Principal’s note of the meeting, although detailed, makes no mention of the plaintiff’s training or the lack of it in the use of the Sensory Room.
29. The meeting of 18th September 2009, I am quite satisfied on the evidence of Rachel Bramhall, was solely concerned with the suitability or otherwise of the child’s programme and I would infer from the evidence that the discussion at this meeting was largely conducted between the plaintiff and Ms. Bramhall and the conclusion of the meeting was, as already indicated, to conduct a review of the programme, but over a four-week period. In all of this, there is not the slightest hint of any threat to the plaintiff, disciplinary or otherwise. The concern seems to have been solely focused on getting the child’s programme right. In this context, everything was focused on this particular child and his programme, and there was no mention whatsoever of how the plaintiff dealt with any other child or children in the Sensory Room.
30. Thus, the content and tone of the letter of 18th September 2009 seem oddly heavy-handed and unrelated to what actually was happening in the meetings of 15th September 2009, and 18th September 2009. There is a specific reference in the letter to a review after three months which was never mentioned in either of these two meetings.
31. When the letter of 18th September 2009 was put to the plaintiff in cross-examination, she immediately and emphatically denied ever having got that letter or of having seen it before it was put to her in cross-examination. I believe the plaintiff in this regard and am quite satisfied that she was not given that letter then or since.
32. The evidence of Ms. Dempsey, the Principal, was to the effect that notwithstanding the invocation of the disciplinary procedure as set out in the letter of 18th September 2009, and as indicated in that letter, no further disciplinary action would be taken because of the training deficiencies of the plaintiff highlighted in the meeting of 15th September 2009. In the first instance, in light of the above, I find this suggestion to be contrived as it bore no relation to what was actually happening at that time.
33. Ms. Dempsey went on, in her evidence, to express dissatisfaction with the outcome of the review process conducted over the four-week period, and specifically with Ms. Bramhall’s review of the plaintiff’s performance during that time. From this, Ms. Dempsey concluded that there had been no improvement and, worse than that, the inaccurate completion by the plaintiff of the form drawn up by Ms. Bramhall which Ms. Dempsey characterised as “falsification” raised, in her view, an additional disciplinary issue.
34. I found the evidenced of Ms. Dempsey with regard to all of this, strange, to say the least. Against a background where there was no doubt but that, firstly, there was no question of the door being locked again, and secondly, the child in question was not only participating in his programme so that his tendency to “run” had not reoccurred, but in fact, had advanced in his programme and was now accomplishing more than had been the case at the start of the four-week programme, the conclusion that there had been no improvement is not only groundless but seems to have wandered into the realm of irrationality.
35. The treatment of the plaintiff’s request to Ms. Bramhall to change the filling out of the form so as to make it more accurately conform to the undoubted reality, which was never in doubt, as “falsification”, can only be said to be extreme and utterly removed from what right-thinking people would consider to be a reasonable conclusion in that regard. It has to be remembered that the forms in question were designed by Ms. Bramhall, on her own initiative, for the purpose of reviewing the suitability of this child’s programme. Forms of this kind had never before been used for this child or any other child in the school. Thus, the plaintiff, as the only SNA ever asked to use this type of form, was, up until their introduction, entirely unfamiliar with them, and one would have thought that the plaintiff’s mistake in completing the form might, in the first instance, have been permitted to be rectified by Ms. Bramhall, and secondly, treated by Ms. Dempsey as no more than an honest mistake, and in the interest of ensuring a proper recording of the child’s participation in the programme for the future, ought to have been corrected to reflect the true position. Instead, the form and the plaintiff’s error in the completion of it appear to have been used by Ms. Dempsey as a trap for the plaintiff.
36. Arising out of all of this, the evidence of Ms. Dempsey was to the effect that because of the failure of the plaintiff to improve and her “falsification” of the forms, the disciplinary process needed to be revived and the matter brought to the attention of the Board for what she described as “advice” as to how to proceed.
37. About that time, she also raised the matter with Mr. Lynch, the Chairman of the Board of Management of the school, and he readily assented to the matter being brought to the attention of the Board. In his evidence, however, he seems to have been only concerned about the locking of the door, which he saw as wholly unacceptable because of the child protection implications involved. Although Ms. Dempsey saw the unsatisfactory outcome of the four-week review process as the factor now necessitating a revival of the disciplinary process and a recourse to the Board, Mr. Lynch, in his evidence, did not seem to be alert to all of that, but seemed solely focused on the locking of the door in the context of child protection.
38. A further meeting was held between the plaintiff and Ms. Dempsey on 12th November 2009, the purpose of which was to move the plaintiff into the class of the Deputy Principal, Ms. Mary Fleming. The evidence of Ms. Dempsey was that this was not precipitated by the recent review, but was necessitated by other staff changes, specifically, the departure of Ms. Bramhall from the school in the first week of November 2009, to whose class the plaintiff had been attached, and the necessity to move another SNA who was pregnant into a different position. The evidence of Ms. Fleming was that the plaintiff’s performance as an SNA attached to her class was entirely satisfactory from then until the plaintiff left the school at the end of September 2010.
39. The next meeting of the Board was scheduled for 23rd November 2009. A few days before that meeting, and I accept the plaintiff’s evidence in this regard, the plaintiff was informed by Ms. Dempsey that the matter was going to be raised with the Board at its meeting on 23rd November. The plaintiff was not told by Ms. Dempsey any detail whatsoever concerning the material that was to be put before the Board or what proposal, if any, the Board was to be asked to consider or what possible outcome there might be insofar as the plaintiff was concerned. The plaintiff was given no written material concerning what might transpire at the Board meeting. The plaintiff was not told that there might be any adverse disciplinary outcome so far as she was concerned, nor was she told that it was the intention of the Principal to seek a disciplinary sanction against her. Ms. Dempsey, in her evidence, accepted that the plaintiff was merely told that “it” was going to the Board, and no more.
40. In the two months that had elapsed since 15th September 2009, I am quite satisfied from the evidence that Ms. Dempsey did nothing to investigate the plaintiff’s contention that other SNAs locked the door of the Sensory Room, in effect, that it was a common practice amongst SNAs. Ms. Dempsey gave evidence of having regular meetings with teachers and SNAs over the school year so that over that time she would probably meet each member of staff once. Whist this process continued in the two-month period between 15th September 2009, and the 23rd November 2009, during which time she would probably have met four or five SNAs in this way, I am quite satisfied from the evidence that she did not elicit their views on whether or not there was a practice amongst the SNAs of locking the Sensory Room door. At a general meeting of SNAs on 20th October 2010, she did give an instruction that the Sensory Room door was not to be locked, but it is quite clear that she did not conduct any inquiry at this meeting to ascertain whether or not there was a common practice amongst SNAs of locking the door.
41. The evidence of the other SNAs who gave evidence in the case, and also the evidence of the plaintiff, which I accept in this regard, establishes to my satisfaction that there was a general practice amongst many of the SNAs, probably a majority, of locking the Sensory Room door for the same reasons that the plaintiff locked it from time to time.
42. I would readily accept that it was reasonable of the defendants, both for health and safety reasons and, more probably, for reasons of child protection, to insist on a prohibition on locking the Sensory Room door. It is extraordinary that until 14th September 2009, no issue arose concerning the locking of this door at all. Notwithstanding that the defendants had a comprehensive safety statement prepared with the help of appropriate experts, no-one addressed the locking of this door or the presence on it of a lock on the inside, in the context of health and safety issues or child protection issues, at all. Because no one considered the matter, no instruction was given, either to lock this door or not to lock it. The matter was simply overlooked by the defendants. Mr. Lynch, in his evidence, put the matter clearly and succinctly when he said that he expected all members of staff, simply because of their training and experience, to have been aware that the locking of this door was unacceptable and that it was unnecessary for there to have been a specific instruction in that regard.
43. However, the daily task of carrying out the programmes of the various children in the Sensory Room fell to the SNAs and they had to cope with the practicality of that situation. Part and parcel of that practicality was the problem of intrusions by other children, for whom the Sensory Room was a great attraction, and also, apparently, a teacher, which had a disruptive effect on the work being done in the Sensory Room. There was also the problem, particularly with one particular child, of restraining that child from running out of the room. In addition, there was yet another problem, of which Ms. O’Connell gave evidence, of a particular child who liked to lock the room himself while he was in there.
44. With the benefit of due consideration and also hindsight, it can easily be said that notwithstanding these practical reasons for locking the door occasionally, the overriding necessity to observe appropriate child protection standards and also to ensure appropriate health and safety provision meant, unequivocally, that regardless of the practical considerations, this door should never be locked. Once the problem came to light, as it did in September 2009, it was easily resolved by way of appropriate instruction and the evidence establishes to my satisfaction it never occurred again. In addition, the obvious precaution of removing this lock from the inside of the Sensory Room door was attended to. It is difficult to understand why this had not happened much earlier.
45. When the matter came before the Board meeting on 23rd November 2009, it did so, not as an item on the agenda or as part of the Principal’s report, but under ‘Item 7: AOB’ (Any Other Business). The minutes record the following:
“Issue with SNA’s performance. Pauline outlined issues she had with an individual SNA. She has linked in with HR in KARE. She wanted the support of the Board to issue a verbal or written warning under the term of the SNA’s contract. Pauline to link in with HR in KARE to discuss the severity of the warning allowed for the presenting issues. All agreed to support the recommendation. Also, there is a mechanism to suspend an increment if there is dissatisfaction with an SNA’s performance. It was proposed that this should happen in this case in light of the situation Pauline outlined.”
46. Under the heading ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with disciplinary action. Notify DES of deferral of next increment for this individual.”
47. Evidence was given by Ms. Dempsey and Mr. Lynch of what transpired at the Board meeting. There would appear to have six members present including Mr. Lynch and Ms. Dempsey. It would appear that having heard what Ms. Dempsey had to say on the matter, the other four Board members, apart from Ms. Dempsey and Mr. Lynch, wanted the plaintiff to be instantly dismissed. It took some persuasion from Mr. Lynch and Ms. Dempsey to dissuade them from that course. However, it is clear from the evidence of Ms. Dempsey and Mr. Lynch that the majority of the Board, if the plaintiff was not to be dismissed, required the imposition of the disciplinary sanction immediately below dismissal, and also, that the plaintiff would have any increment in salary due to her deferred. Whilst all of this was being considered, it is extraordinary to realise that the identity of the plaintiff was never revealed to the Board and was known only to Ms. Dempsey and Mr. Lynch.
48. The evidence of Ms. Dempsey was that she outlined the full history of the matter to the Board. The extreme, if not, downright intemperate, reaction of the Board to whatever they were told, suggests that as a matter of probability, the account given by Ms. Dempsey to the Board of the history of the matter was almost certainly untrue, highly biased, coloured, and grossly and unfairly damnified the plaintiff. Whilst I would readily accept that the members of the Board would be hyper-vigilant on all issues relating to child protection, and rightly so, as a group of probably fair-minded people, I do not think they would have reached conclusions so adverse to the plaintiff, unless grossly misled as to the true circumstances prevailing.
49. Specifically, it is quite clear, that what they were asked to consider was the gross misconduct of a single SNA as distinct from a common practice amongst many SNAs, albeit unacceptable. Insofar as Ms. Dempsey gave a history of the review process discussed above, it is probable she presented this, as she did in her evidence, as a failure of training, culminating in the falsification of a document, a presentation of matters which was undoubtedly untrue, unreasonable and grossly unfair to the plaintiff.
50. The extraordinary feature of all this is that the plaintiff knew nothing in advance of these proceedings and was given no opportunity to represent herself in any way. The purported representation of her by Ms. Dempsey was, in fact, a gross misrepresentation. To say that the conduct of Ms. Dempsey in relation to the lead up to this Board meeting and what happened at it was a departure from all of the norms of natural justice is a feeble understatement.
51. After this Board meeting, nothing was said to the plaintiff who remained in blissful ignorance of what had happened to her for a period of four weeks until 21st December 2009, when, again, strangely, Ms. Dempsey decided to tell the plaintiff just before the Christmas break that she was going to get a Part 4 Final Warning which would be given to her formally in the New Year. It is quite clear that in the discussion between the plaintiff and Ms. Dempsey, the plaintiff enquired how long this would be on her record. I am quite satisfied that she was told six months.
52. On 18th January 2010, whilst doing yard duty, the plaintiff was asked by Ms. Dempsey to come to a meeting in her office with Mr. Lynch. The plaintiff was accompanied at that meeting by Ms. Una O’Connell, a colleague SNA. At that meeting, she was told by Mr. Lynch that she was to receive a Final Stage Part 4 warning for a breach of health and safety, the grounds of which were the locking of the Sensory Room door. She was told that this would be on her record for 18 months. This shocked her, in view of the fact that immediately prior to Christmas, she had been told the warning would last for six months. The evidence of Mr. Lynch and Ms. Dempsey satisfies me that the 18-month period was chosen because this is what was provided for in the disciplinary policy of the defendants and the six months mentioned in December was based on a mistaken belief.
53. A meeting of the Board of management of the defendants took place on the evening of 18th January 2010, and under ‘Item 8’, again, ‘AOB’ (Any Other Business), the following is said:
“Issue with SNA performance
Met with the individual who was accompanied by another SNA. Talked through the issues and concerns and issued a formal written warning. Draft letter read out to BOM. Pauline will liaise with HR re wording about building in reviews into the letter etc. Deferral of increment was not applicable.”
Under the heading of ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with letter.”
54. I am quite satisfied on the evidence that at the meeting on 18th January 2010, that there was no general discussion, merely an announcement to the plaintiff of that which had already been intimated to her before Christmas, namely, that she was to get a Part 4 Final Warning. Notwithstanding that it may have been recorded in the minutes, I am quite satisfied that the issues were not “talked through”. I accept the plaintiff’s evidence that she indicated dissatisfaction and that she had been in touch with IMPACT, her union, seeking advice and support, and that she wanted to appeal the decision.
55. Two days later, on 20th January 2010, the plaintiff was again summoned to the office of Ms. Dempsey, and there she was handed a copy of a letter from the Board of management of the defendants, signed by Mr. Lynch, as Chairperson, and which was in the following terms:
“Dear Una,
Further to our meeting on 18th January which was attended by Pauline Dempsey, Principal, Una O’Connell, SNA (at your request), myself, as Chairperson of the Board of management and yourself. I wish to confirm that you are being issued with this final written warning as per Stage 4 of the disciplinary procedure.
This warning is being issued as a result of the investigation that was carried out at the request of the Board of management into an incident that occurred on 14th September 2009, whereby you locked yourself and a child into the Sensory Room. On conclusion of the investigation, the matter was discussed at the Board of management meeting on 23rd November 2009, and it was agreed at this meeting that you be issued with this warning.
The Board of management views any breach of health and safety procedures as a very serious matter and wishes to inform you that a further breach of this or any other school policy could result in further disciplinary action, up to and including dismissal.
This warning will remain on your file for a period of 18 months.
If you have any queries on the above, please contact me.
Yours sincerely,
Christy Lynch
Chairperson”
56. It is to be observed immediately that the statement in the letter that an investigation was carried out at the request of the Board of management is simply not correct. The Board of management knew absolutely nothing of the locked door incident on 14th September, or of any other issue concerning the plaintiff, until the meeting of 23rd November 2009, when, for the first time, they were given Ms. Dempsey’s account of the matter. It is plainly obvious that after the Board of management meeting on 23rd November 2009, there was no further investigation other than queries addressed by Ms. Dempsey and Mr. Lynch, one to the Department of Education and Science with a view to deferring any increment in salary due to the plaintiff, and the other to KARE, solely with regard to the terms of the final written warning.
57. It transpired, on inquiry to the Department of Education and Science, that the plaintiff was not due an increment for three or four years, and therefore the defendants were unable to activate that penalty.
58. It useful to reflect on what had happened to the plaintiff up to this point in time. The plaintiff was subjected to a disciplinary sanction of a severe kind which was unmerited. By this, I mean that the offence of locking the Sensory Room door, which the defendants were entitled to regard as unacceptable, was undoubtedly a common practice amongst the SNAs, and had the defendants, and in particular, Ms. Dempsey, carried out the appropriate enquiries after 14th September 2009, at that time, that would undoubtedly have been readily ascertainable. She did not do that. As a consequence, the picture presented to the Board on 23rd November 2009, was of individual misconduct on the part of the plaintiff.
59. Had the Board been told the true position, whilst they might well have been shocked that such a practice existed and directed steps to prohibit it, they could not have singled out the plaintiff to suffer punishment for it, alone. In addition, it was commoncase that the issue of the locking of the Sensory Room door had never arisen for consideration and therefore no instruction had ever been given in relation to it, and neither had it been considered in the context of the defendants’ Health and Safety Statement. In these circumstances, notwithstanding the training and experience of SNAs, it was unfair to impose a severe disciplinary sanction on an SNA for doing something that in the circumstances in which it was done, had practical merits and where no instruction was given not to do it.
60. The manner in which the disciplinary process with regard to the locking of the Sensory Room door was handled by Ms. Dempsey was grossly unfair to the plaintiff and utterly denied her the benefit of her constitutional right to natural justice and fair procedures.
61. The conjuring up by Ms. Dempsey of the additional offence of failing to improve during the review process and of the “falsification” of the review forms was, as discussed earlier, at best, irrational, in the sense of there being a complete lack of any real basis for such conclusions. It is hard to understand how an educated, sophisticated person, such as Ms. Dempsey, could arrive at such conclusions without an element of bad faith.
62. But, according to her own evidence, it was her conclusions in this regard that prompted her to invoke the disciplinary process by taking the matter to the Board with all that ensued therefrom. In my view, the plaintiff should not have been subjected to this disciplinary process. When it came to light that the Sensory Room door was locked, and when the plaintiff responded by indicating that other SNAs did it, the appropriate and immediate response of Ms. Dempsey should have been to ascertain the truth or otherwise of the plaintiff’s contention. If, having done that, and have ascertained, as she undoubtedly would have if she did conduct an appropriate inquiry, that there was a common practice of doing this, she should have, as she did in October, prohibit the practice, but it would have been entirely unfair and inappropriate to have initiated a disciplinary process against the plaintiff alone. The addition of what might be described as the “trumped up” charge of failing to improve and the falsification of a form, given the complete lack of any basis for it, was reprehensible, and as this is what led to the matter being brought to the Board, I am quite satisfied that this disciplinary matter should not have been advanced to the Board for the purposes of disciplining the plaintiff.
63. I am quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace.
64. After the meeting on 20th January 2010, the plaintiff was asked to come to a meeting with Ms. Dempsey on 27th January 2010. I accept the plaintiff’s evidence that the purpose for this meeting, as expressed by Ms. Dempsey, was to get “closure” on the matter. There is a total conflict of evidence between the plaintiff and Ms. Dempsey as to what happened in this meeting. There were no other parties present. It was the plaintiff’s evidence that during the meeting, she was subjected to a considerable variety of denigration which belittled, humiliated and reduced her to tears. Ms. Dempsey denies all of the plaintiff’s allegations in this regard, apart from mentioning to her that she had exhausted her use of sick leave and to be more careful on that matter in the future.
65. I accept the plaintiff’s evidence as to what happened in this encounter.
66. Thereafter, the plaintiff sought the advice and support of the union, IMPACT, and in due course, a meeting was arranged for 23rd March 2010, which was attended by Mr. Lynch, Ms. Dempsey, the plaintiff and her union representative, Mr. Mullen. Mr. Mullen sought to persuade the defendants to remove or withdraw the final letter of warning and advocated that the closing of the door had been common practice amongst the SNAs. At this meeting, the plaintiff mentioned an occasion in April 2009, when she was in the Sensory Room with Ms. O’Connell, her colleague, when Ms. Dempsey came to the room with a number of visitors. The plaintiff’s evidence, and also that of Ms. O’Connell, was that the door was locked on this occasion. Ms. Dempsey contended on this occasion, and on the previous occasion, on 15th September 2009, that she was not aware that the door had been locked. The outcome of this meeting would appear to have been that Mr. Lynch requested that enquiries be made of the SNAs to ascertain whether or not there was a practice to lock the door. It would appear that at the meeting, Ms. Dempsey said that she had conducted enquiries of approximately 70% of the SNAs, none of whom admitted locking the door.
67. This meeting had been brought about by a letter dated 29th January 2010, from Mr. Philip Mullen of IMPACT to Mr. Lynch, in which the following was said:
“Re. Ms. Una Ruffley – Special Needs Assistant
Dear Mr. Lynch,
I refer to the final written warning issued to Ms. Ruffley on 18th January relating to an incident that occurred on 14th September 2009. We wish to appeal against this sanction on the following grounds:
1. Process: We believe that the process applied to the investigation did not accord Ms. Ruffley the right to adequately defend herself.
2. The procedures in place in St. Anne’s had not made it clear that locking the Sensory Room was a health and safety breach. That is not to say that it was acceptable, but rather, that the practice was known and had not been objected to previously.
3. Sanction: We believe that, given the circumstances, a final written warning is too severe a sanction in this case.
I would very much welcome an opportunity to elaborate on these points at your convenience and would appreciate if you would let me have copies of relevant documentation (disciplinary procedure, original complaint, minutes of meetings, etc.).
I would also appreciate if you could confirm if any other disciplinary matters relating to Ms. Ruffley are outstanding.
I look forward to your early response.”
Following the meeting on 23rd March 2010, the plaintiff devised a questionnaire which was put to her SNA colleagues. This contained two questions, the first being:
“Have you ever locked the Sensory Room door?”
The second question was:
“Have you ever been asked by Pauline Dempsey ‘have you ever locked the Sensory Room Door?”
68. This questionnaire was answered by four of her colleagues, all four of whom answered ‘yes’ to the first question. These colleagues were Ms. Angie Kearney, Ms. Liz McDonnell, Ms. Una O’Connell and Ms. Catriona Daly. Insofar as the second question was concerned, only one SNA, namely, Angie Kearney, answered ‘no’. The evidence of the plaintiff and her colleagues who gave evidence before me was that many more of the SNAs were willing to answer the questionnaire in the affirmative but only if they could do so anonymously. I accept their evidence in this regard. Insofar as any enquiries were made by Ms. Dempsey after January 2010, it would seem to me that such enquiries were likely to be ineffective as it was unlikely, having regard to what had happened to the plaintiff, which was well known in the school, that many of the SNAs who had locked the door would admit doing this.
69. In a further letter dated 22nd April 2010, from Mr. Mullen to Mr. Lynch, the following was said:
“Re: Ms. Una Ruffley – Special Needs Assistant
Dear Mr. Lynch,
I refer to our appeal against disciplinary action taken against Ms. Ruffley and our meeting with you and Ms. Pauline Dempsey.
For your information, I attach a copy of a questionnaire relating to the locking of the Sensory Room door which backs up our contention that this practice had not been unique to Ms. Ruffley.
I would appreciate if, taking account of our submissions, you could let me have your decision in relation to the matter.
Yours sincerely.”
70. The minutes of the meeting of the Board of management of 26th April 2010, at ‘Item 1.4’ record the following:
“SNA Performance
Christine and Pauline met with IMPACT. Letter just received in relation to that meeting. They contend it was custom and practice to lock the Sensory Room door. They had a questionnaire attached which four staff had signed to say they had locked the door. They say it was reasonable practice for the SNA to do so as she was reasonable practice for the SNA to do so as she was not told not to do so. The 18-month disciplinary was extreme. It had been agreed at the meeting that Pauline would speak to all SNAs.”
Under the heading of ‘Action’, the following is recorded:
“Pauline to speak with SNAs.
Pauline and Christy to discuss options with Conal Boyce.”
71. By a letter dated 20th May 2010, Mr. Lynch responded to Mr. Mullen as follows:
“Thank you for your letter of 22nd April 2010.
The Board of management considered the contents of your letter and have decided to stand over their original decision with regard to this matter.”
72. The next meeting of the Board of management took place on 8th June 2010. The minutes of that meeting, at ‘Item 1.3’ record the following:
“SNA Performance
Following advice from Conal Boyce, a letter was sent to IMPACT. They replied, and having reviewed the letter, the Board stand by the original decision. All agreed.”
73. Although this foregoing passage from the minutes would seem to suggest that there was a further reply from IMPACT to the defendants after the letter of 20th May, 2010, no such letter has been located.
74. As is apparent, the letter of 20th May 2010 seems to have been despatched before the Board had an opportunity to consider the results of Ms. Dempsey’s intended enquiries with all of the SNAs. There was no evidence to suggest that on foot of the decision taken by the Board on 26th April 2010 that Ms. Dempsey did specifically, at that stage, conduct the enquiries as envisaged by the Board with all of the SNAs. In the meantime, before the next Board meeting, the decision was taken by somebody, not the Board, to reject the plaintiff’s appeal grounded on evidence that the locking of the door was a common practice amongst SNAs. At its meeting on 8th June 2010, the Board appears to have ratified that decision, and in the minute, there is no reference to any consideration of the outcome of enquiries amongst the SNAs as to what was the position with regard to locking the door.
75. I am quite satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff, namely, that the locking of the door was a common practice amongst the SNAs. At this late stage, when the Board had been alerted to the plaintiff’s case in this regard, they declined to give it any due consideration. The plaintiff’s appeal to them, insofar as it could be said to be an appeal in the normal sense, as the appeal was to the same decision maker as had made the decision appealed against, thereby demonstrably offending the maxim Nemo iudex causa suam, in the event, fell on deaf ears.
76. Following on this, the plaintiff consulted a solicitor and this gave rise to a letter from her solicitor, Burns & Nowlan & Company, to the defendants, setting out in detail the plaintiff’s complaint. There was some dispute as to when that letter was sent. The plaintiff relied upon a copy of that letter dated 27th May 2010, whereas, for the defendants, it was contended that the letter they received was dated 22nd June 2010. It is commoncase that regardless of the date of the letter, the content of it was identical in either case. This letter finished with the following two paragraphs:
“We would be obliged if, within a period of ten days from the date hereof, you would reply to us with the following:
1. Kindly acknowledge that you have received confirmation from other members of staff and it was common practice that the Sensory Door was locked.
2. In light of the aforementioned information, why has a letter of apology not issued to our client?
3. Kindly acknowledge that our client and all members of staff have been issued with health and safety procedures.
4. Please confirm whether or not there have been previous complaints made against our client. If such complaints exist, why were they not dealt with in the appropriate manner?
5. Please confirm that there is no issue with the sick leave that our client has taken over the last fourteen years.
We are aware that the IMPACT union did represent our client in the latter part of the matter set out above. Please note that we now represent Ms. Ruffley. Our client is very anxious to have this matter resolved prior to the closure of the current academic year and therefore we look forward to hearing from you by return.”
This letter was replied to by a letter of 28th June 2010, from Mr. Lynch to the plaintiff’s solicitor in which he said the following:
“Thank you for your letter dated 22nd June 2010 with regard to Ms. Una Ruffley. The issues raised in your correspondence are a matter for the Board of management of the school.
As the school is now closed, these issues will be discussed by the Board at its next meeting on 20th September 2010.
Following discussion at the meeting, we will respond to you.”
77. The next step in the correspondence was a letter of 24th September 2010, from Mr. Lynch for the defendants to the plaintiff’s solicitor in which he said the following:
“Dear Madam,
I refer to the above Ms. Ruffley and to your letter dated 22nd June 2010 which has been received by the Board of management at St. Anne’s School, the Curragh. It is regrettable indeed that your client was occasionally unaccompanied at certain of the meeting which were held in relation to these matters as, had she chosen to have a third party with her, as advised, there might not be quite so much inconsistency in the versions of these matters which have from time to time been recounted to various parties.
In the first instance, it is absolutely denied that there was any question of bullying or harassment of your client who has at all times been treated with the utmost sensitivity and has been afforded all of the entitlements due to someone in her position.
Whilst it may very well be that from time to time it would appear that certain members of staff have, on very rare occasions, seen fit to lock the door of the Sensory Room at St. Anne’s School, this is not the policy of the school and it strongly advised that members of staff not do this, for reasons as we are sure you will understand, that include the safety and wellbeing, not only of the children, but also the staff member concerned. We presume your client will accept that there may very well be circumstances where it is inadvisable for a staff member to be locked in an inaccessible room, alone with any child, and for many possible reasons.
In the light of the foregoing, your client is not entitled to, nor has she ever sought a letter of apology and this letter is not to be construed as such an apology. We regret very much that your client seems to have taken offence at being advised that the advice contained in the preceding paragraph is indeed that of the Board of management, but that is the case and your client might note the position.
The Safety Statement of St. Anne’s School has been made available at all times to the staff. It is a substantial document, is freely available to all members of staff and has from time to time been on display in the staff room. Should your client have any issue with this, then she may contact any member of staff, but most particularly the Principal, with a view to inspecting the document. It is the case that all staff were appraised of the document’s content at meetings held on 5th May and 12th May 2006. Your client is recorded as being present in the school on that date.
We are surprised to discover that, in this context, you are instructed to raise the question of your client’s annual reviews. These have always been available to your client and your client knows well that there have from time to time been issues which have arisen and been dealt with as the Board understood it to the satisfaction of all parties. It was a matter that was raised by our client at a meeting with the school Principal, and, so we are instructed, dealt with. If your client has issues in relation to our annual reviews, then of course she may take these up with the Principal as she sees fit.
As part of the reviews referred to above, it has been necessary on a number of occasions over the past several years to raise with your client the question of her uncertified absences on sick leave. Again, this is something of which your client has at all stages been fully aware and we are surprised to find the matter raised in the context of the Sensory Room. Your client’s record of uncertified sick leave has been at all stages available to her, but she, of course, knows this better than anyone else herself.
You are correct in saying that IMPACT represented your client at various points in the course of correspondence about this matter. It is indicated to your client at that time that so long as everything ran smoothly there should be no reason to revisit these matters. The fact that they are now being revisited is a matter entirely for your client who failed to see what, if anything is to be gained at this stage in continuing with this correspondence.”
A number of things are to be noted in passing with regard to this letter. Firstly, reference to an apparent reliance upon the Safety Statement is curious, given the fact that it was commoncase that the Safety Statement was entirely silent on any health and safety aspects relating to the locking of the Sensory Room door, or to the presence on that door of an internal lock. The surprise at the matter of the plaintiff’s sick leave being raised in the context of the Sensory Room is also curious, given that the only thing that Ms. Dempsey admitted raising with the plaintiff in the meeting of 27th January 2010, was her sick leave, in respect of which she advised her to keep an eye on it.
78. The final paragraph in this letter appears to be a further rebuff by the defendants of the plaintiff’s primary assertion, namely, that the locking of the Sensory Room door was a common practice amongst SNAs, a practice which the third paragraph of that letter appears to implicitly, if not expressly, acknowledged to have existed.
79. The next letter in the correspondence is a letter dated 12th October 2010, from the plaintiff’s solicitor in reply to the defendants’ letter of 24th September 2010, in which the following is stated:
“(a) First of all, we are in receipt of the letter which you issued to our clients on 18th January 2010, wherein the second paragraph therein recites as follows ‘this warning is being issued as a result of the investigation that was carried out at the request of the Board of management into an incident that occurred on 14th September 2009 whereby you locked yourself and a child into the Sensory Room. On the conclusion of the investigation, the matter was discussed at the Board of management meeting on 23rd November 2009, and it was agreed at this meeting that you would be issued with this warning’.
(b) The writer herein is at a loss to reconcile the contents of your letter of 24th September with the contents of this letter. In your letter of 24th September 2010 it is admitted by the Board of management that members of staff have on occasion seen fit to lock the door of the Sensory Room, and yet our client was singled out in relation to one incident of locking the Sensory Room and was furnished with a final warning letter that was to remain on her employment file for a period of 18 months. It is on this basis alone that we requested that a letter of apology and acknowledgement that indeed the warning letter was going to be removed from her personnel file;
(c) Further, our client has instructed us that recently, on Friday 24th September 2010, the Principal of the school explained to the staff that it was now acknowledged and aware that at certain times members had locked the door. Our client finds it incredulous that if this was acknowledged by the school and by the Board of management, how our client was issued with a warning letter in respect of the matter;
(d) In respect of the annual reviews, once again we have taken our client’s instructions and have been informed that never in her 14 years of being employed by KARE had she any uncertified sick absences. Rather, she has confirmed that she was never made aware of any other ‘issues’ regarding her work and we would be obliged if, by return, you would identify these ‘issues’ so that our client can reply to same;
(e) Further, please note that our client is currently out of work. Her doctor has certified her leave of absence as work related stress. In light of same, we would be obliged if all matters pertaining to our client were directed through our offices . . .”
80. No reply was received to this letter and the solicitor for the plaintiff sent a reminder letter of 11th November 2010.
81. By a letter of 20th December 2010, Mr. Lynch, on behalf of the defendants, wrote, saying the following:
“Dear Madam,
I refer to your letter dated 12th October 2010 which was presented to the Board of management at its meeting in St. Anne’s School.
Further to extensive debate, it was felt that this was a matter that requires considerable further discussion by the Board of management.”
82. The minutes of the Board of management meeting on 9th November 2010, were put in evidence. These disclose no consideration by the Board of the plaintiff’s situation. At this stage, the Board were well aware of the fact that the plaintiff had been out of work since 27th September 2010 on sick leave, and, as had been advised by the defendants to the plaintiff in a letter of 14th December 2010, the plaintiff’s entitlement to incremental salary would expire on 19th December 2010, and thereafter, the best that was available to her was to apply for a period of unpaid sick leave. All of this would convey to any reasonable Board that there was considerable urgency in resolving the plaintiff’s situation and they were being pressed for such a resolution in the correspondence from the plaintiff’s solicitor.
83. The next meeting of the Board was on 18th January 2011.
84. By a letter of 17th January 2011, the plaintiff’s solicitors wrote to the defendants as follows:
“We refer to the above and to previous correspondence herein.
Please note we are writing on behalf of the above named client in respect of correspondence which you sent to her in December 2010.
Kindly note our client now wishes to apply for sick leave.
We look forward to hearing from you in this regard.”
85. ‘Item 1.6’ in the minutes of the Board meeting of 18th January 2011, states the following:
“SNA PERFORMANCE
Letter received dated 6th January 2001 from Burns & Nowlan Solicitors.
SNA has been informed by the DES that entitlement to incremental salary will cease on 19th December 2010. After this time, SNA must write to the Board requesting unpaid SL on a monthly basis.
Christy proposed that a letter is sent advising of current situation.
Seconded: Conal.”
Under the heading of ‘Ongoing’ related to the item, there is the following said:
“Sub-group to meet on 24th January 2001. Group to include Christy, Conal, Pauline.
Letter advising of this to be sent out.”
86. By a letter of 19th January 2001, the solicitors of the plaintiff for the first time wrote a standard letter intimating proceedings claiming damages for personal injuries sustained by the plaintiff. No further correspondence appears to have been received from the defendants relating to any further discussion by the Board of the plaintiff’s situation. Notwithstanding the letter of 19th January 2001, threatening proceedings, by a letter of 24th March 2011, the solicitors for the plaintiff wrote, saying:
“We refer to the above and to previous correspondence, and in particular to your letter of 20th December, wherein you refer to our letter of 12th October 2010 which was presented to the Board of management meeting at St. Anne’s School. Thereafter, you say you required further extensive debate before you could reply to same. The writer herein is dictating this letter on 24th March and would respectfully submit that any such debate should have taken place by now.
We look forward to a reply at your earliest convenience.”
There does not appear to have been a reply to this letter and there is no evidence of any further discussion, as intimated in the defendants’ letter of 20th December 2010, by the Board of the plaintiff’s situation, and in particular, the case made on her behalf by her solicitor in correspondence culminating in the letter of 12th October 2010. It would seem to me that the plaintiff, through her solicitor, did her utmost to pursue her grievance through the internal procedures of the defendants, but the defendants wholly failed to respond to her in that context, and thus, she was left with no option but to pursue these proceedings
87. Up until March 2010, it may have been the case that the Board were not aware of the merits of the case being made by the plaintiff, namely, that it was a common practice among SNAs to lock the door of the Sensory Room, notwithstanding that Ms. Dempsey, the Principal, was well aware of the plaintiff’s case. However, from March 2010, onwards, there can be no doubt but that the Board were clearly alerted to the plaintiff’s case, and from not later than April 2010, were also aware that several other SNAs also occasionally locked the Sensory Room door. The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all, consider the merits of the plaintiff’s case at this late stage when they were aware of the impact that their now erroneous and unjust decision was having on the plaintiff was, in my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.
88. Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.
89. The next question to be considered is whether or not the plaintiff has, as a result of the conduct of the defendants, suffered an identifiable psychiatric injury as indicated in the passage from the judgment of Fennelly J. in the Quigley Complex Tooling & Moulding Ltd. case quoted above.
90. The plaintiff has given evidence to me, which I accept, that from October/November 2009, she began to experience high levels of stress caused by what she perceived as the unfair treatment of her by the defendants, and in particular, Ms. Dempsey. As time went on, and not only was the problem not being resolved but it was getting worse, as she saw it, I have no doubt that these symptoms of stress became much worse, and I accept that from around March 2010, she was suffering constantly from headaches, insomnia, diarrhoea and high levels of anxiety. All of this persisted through the summer months of 2010, and she eventually attended her General Practitioner, on 19th August 2010, complaining of frontal facial temple headaches all summer, that she could not think straight, all related to a bullying issue at school. Her General Practitioner diagnosed muscle contraction headache and prescribed medication for her. She attended her General Practitioner again on 28th September 2010, with similar complaints, with the addition of some neck pain. The General Practitioner put all this down to stress related to bullying.
91. I have no doubt that the imminent return to school after the summer holidays had a heightening effect on her stress and anxiety at that time. On her return to school, a further episode with the Principal, Ms. Dempsey, occurred on 27th September 2009. The plaintiff’s evidence was that she arrived for school in good time but had to move her car in the car park because of car park lining work going on there. That, notwithstanding, when she got into the school at 8.55am, she encountered Ms. Dempsey and was reprimanded by her for being late. Ms. Dempsey acknowledged in her evidence that it was not unusual for her to challenge or remind staff whom she believed were not on time, in these circumstances. The plaintiff felt particularly aggrieved because she felt she was in good time and that the rest of the staff were still in the staff room having breakfast. This incident, in the ordinary course, would not have been of any great consequence, but for the plaintiff, it was the last straw. She felt she could bear it no more and found the stress of continuing in the school intolerable. I have no doubt that at that stage, she had a heightened sense of apprehension in all her dealings with Ms. Dempsey, having regard to all that had happened in the previous year. As a direct consequence of this incident, the plaintiff felt she could no longer continue in the school and she went out on certified sick leave due to work-related stress.
92. Prior to 2009, the plaintiff had two previous episodes of Depression, one of which was a postpartum Depression and the other a reaction to bereavements. She required anti-depressive medication for these but she recovered fully on both occasions. However, and the evidence of Dr. Byrne, a psychiatrist called for the plaintiff, satisfies me in this respect, having suffered previous episodes of Depression, she was predisposed to further depressive illness. I am satisfied on the evidence of Dr. Michael McDonnell, her GP, and Dr. Byrne that the plaintiff suffered an Anxiety and Depressive Disorder resulting from her reaction to what had happened to her in St. Anne’s School from September 2009 through to September 2010. This resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and an inability to cope with everyday life. All of this rendered her incapable of returning to work in the defendants’ school, and all of that, allied to her fear that she would not have a good reference, inhibited her from seeking employment elsewhere. As a result, she has not worked since 27th September 2010.
93. She has been on anti-anxiety and anti-Depression medication since late 2010, and she attended the Kildare Mental Health Services in Newbridge on a regular basis where she was prescribed anti-Depression medication. Her situation has not improved over the intervening period. An examination of her by Dr. McDonnell in February 2014, included the completion of two questionnaires, namely, the General Anxiety Disorder Assessment and the Patient Health Questionnaire, the results of which indicated she was suffering from a severe anxiety state and severe Depression. I think it probable that the impending litigation was, at that stage, worsening her symptoms, but that notwithstanding, there can be no doubt that she has, since late 2010, suffered from a significant anxiety and depressive disorder and that continues to afflict her.
94. Dr. Byrne’s evidence was to the effect that she has to continue with her medication and other forms of support and therapy which should enable her to recover her whole sense of personal safety and her sense of self-worth, and to enable her to have a feeling of control of her life. With all of that, she could look forward to a gradual reintroduction to a work situation. It would seem to me to be probable that when this litigation is concluded, there is likely to be a significant improvement in her anxiety and depressive state. I would think it probable, having regard to Dr. Byrne’s evidence, that she will have the capacity, in due course, to return to fulltime, gainful employment.
95. I am satisfied that the plaintiff has suffered a definite and identifiable psychiatric injury from which she still continues to suffer significantly and will continue to do so for some time into the future. Therefore, she must be compensated for her pain and suffering in that regard to date and into the future. In my opinion, the appropriate sum to compensate the plaintiff for her psychiatric injury to date is the sum of €75,000. Insofar as the future is concerned, as already mentioned, the probability is that she will improve and go on to recover over time, particularly when this litigation is finalised. With that in mind, in my opinion, the appropriate sum to compensate her for her psychiatric injury for the future is the sum of €40,000, making a total for general damages of €115,000.
96. The plaintiff’s loss of earnings up to 6th March 2014 was agreed in the sum of €93,276.39. There was some suggestion that there may have been some deductible benefits which would reduce that figure, but the court was not told if that was so or what the amount thereof should be. That being so, I must proceed on the basis that there are no deductible social welfare benefits.
97. In my view, the plaintiff is entitled to recover the foregoing sum, and as it is clear she will probably not be able to return to gainful employment for some time yet, is entitled to recover damages in respect of future loss of earnings. I think it probable that with appropriate treatment, she will be fit for such employment in the relatively near future, and accordingly, I would award her half the foregoing sum again in respect of future loss of earnings, namely, €47,000, making a total of €140,276 in respect of loss of earnings past and future.
98. Accordingly, there will be judgment for the plaintiff in the sum of €255,276.
Two Complainants (claimants) v A Restaurant (respondent)
DEC-E2013-045
Equality Tribunal
20 May 2013
[2013] 24 E.L.R. 333
(May 20, 2013)
1. Dispute
1.1 This dispute involves a claim by complainant A (hereinafter “the first complainant”) and complainant B (hereinafter “the second complainant”), (together “the complainants”), that they were directly and indirectly discriminated against by a restaurant (hereinafter “the respondent”) on grounds of gender, marital status, sexual orientation and race within the meaning of s.6(2)(a), (b), (d) and (h) of the Employment Equality Acts 1998–2008 (hereinafter “the Acts”) in relation to access to employment, promotion or re-grading, training and conditions of employment and otherwise contrary to s.8 of the Acts.
1.2 The first complainant also alleges discrimination on the ground of disability ( i.e. lupus) within the meaning of s.6(2)(g) and contrary to s.8 of the Acts.
1.3 The complainants also claim that they have been subject to harassment on the grounds of gender, marital status, sexual orientation and race and sexual harassment in the course of their employment with the respondent within the meaning of s.14A of the Acts.
1.4 The complainants allege they have been subject to victimisation within the meaning of s.74(2) of the Acts.
1.5 The first complainant alleges constructive discriminatory dismissal and the second complainant alleges discriminatory dismissal.
1.6 The complainants also allege that they have been subject to discrimination by association, within the meaning of s.6(1)(b)(i) and (ii) of the Acts.
2. Background
2.1 The complainants referred their complaints under the Acts to the Director of the Equality Tribunal which were received on December 15, 2008. The complaints were not received in the Tribunal within the six months time-limit set out in the Acts. The complainants applied for an extension of time for referral of the complaints. On November 4, 2009 it was directed that an extension of time to 12 months for the purpose of referring a complaint to the Tribunal be given in these cases.
2.2 A written submission was received from the complainants on September 30, 2010. A written submission was received from the respondent on February 21, 2012. As required by s.79(1) of the Acts and as part of my investigation, I held *336 a hearing of this complaint on March 15, 2012. At the hearing I sought further documentation from the complainants and respondents and correspondence with the parties continued until May, 2012.
3. Summary of complainants’ case
3.1 The first complainant is a Hungarian who speaks English fluently. The second complainant is a Slovakian of Hungarian national origin who speaks Hungarian but has very poor English. The complainants are a lesbian couple. The first complainant commenced employment as a waitress with the respondent on Wednesday, May 21, 2008. Her employment terminated on Saturday, June 7, 2008. The second complainant commenced employment as a kitchen porter with the respondent on Saturday, May 24, 2008. Her employment terminated on Wednesday, June 4, 2008.
3.2 The complainants claim that the respondent did not furnish the complainants with any of the following documentation:
Statement of terms of employment or contract of employment
Grievance and disciplinary procedure
Bullying and harassment policy
3.3 They claim that this failure on the part of the respondent, while not contrary to the Terms of Employment (Information) Act 1994 put them, as foreigners, at a particular disadvantage in defending their rights compared to Irish people and therefore indirectly discriminated against them on the race ground.
3.4 The complainants were not furnished with pay-slips or a P45. The respondent did not register the second complainant for tax with the Revenue Commissioners.
3.5 The first complainant called into the respondent restaurant chain to seek work. She was recruited to work as a waitress at a wage of €8.65 per hour. She started work at 1p.m. on May 21, 2008 in the branch. Her duties were waiting tables, taking orders, clearing tables and taking cash. She claims she was not given any training and started working immediately. Her shift began at 1p.m. The restaurant closed at 11p.m., after which the staff cleaned up. The staff members were paid for the time it took to finish cleaning.
3.6 On her first day at work the first complainant asked K, the branch manager whether there were any vacancies as her girlfriend, the second complainant, was looking for work. The first complainant explained that her girlfriend had very little English and would have great difficulty dealing with the public. She suggested that a kitchen position might be more suitable for her as she would have less contact with the public. The second complainant commenced employment on May 24, 2008 as a kitchen porter. She states that on her first day the other kitchen staff appeared to be annoyed that she had been taken on as they feared there *337 were not sufficient hours to go around. She was paid €8.65 per hour. In spite of her poor English she was called upon from time to time to wait on customers because it was busy. This she found extremely stressful because of her lack of training and poor language skills.
3.7 The complainants state that they were the only females employed on their shift. The staffing arrangements were:
Management
Ml, Area Manager, Irish
K, Branch Manager, Irish
Two supervisors:
R South Asian
H South Asian
Kitchen staff
N, Head chef, Hungarian
S, short order cook, Hungarian
P, short order cook, Slovakian
C, Chinese short order cook
T, kitchen porter, Hungarian
Second complainant, Slovakian, Hungarian speaker
There was one male waiter, Chinese.
3.8 The complainants both claim that they were not given adequate training during employment.
3.9 The complainants experienced difficulty when the staff found out that they were a couple and in a relationship with each other. The complainants do not know how the staff came to know of their relationship, although the complainants may have been observed walking home after work hand-in-hand. On May 25, 2008, S asked the first complainant if they were a couple. She answered that they were and asked him not to persist in questioning them. Nevertheless on another occasion S asked the first complainant if they (complainants) had a bath together and could he join in; did they use vibrators; who was the man in their relationship and how did they do “it”. The co-workers continued to question them about their relationship in spite of the first complainant asking them to stop. They claim that R their supervisor put the complainants under pressure once he became aware of their sexuality and they were given extra work and more unpleasant work than the other employees.
3.10 The first complainant felt that R unfairly burdened her with work and that her male waiter colleague was not so burdened. She was always refused permission to leave early while her male colleague, who was a poor timekeeper, was never told off for being late. On one occasion the first complainant was *338 working on the till and there were 5 to 10 customers waiting to be served at table. R, the supervisor, pushed her out from behind the till and said “get out there you are not good enough to do that”. She asked R why he treated her like this and he said that she was a good worker and he wanted to push her to improve. She felt bullied by him. He raised his voice to her on numerous occasions and spoke abruptly to her. As things escalated she told him she would have to leave and he didn’t answer her.
3.11 Members of the kitchen staff went on cigarette breaks as often as they wished without seeking the supervisor’s permission but the complainants had to ask the supervisor’s permission and when they did they would only be allowed one or two breaks per shift. The complainants pointed out to the supervisor that the other kitchen staff members were being treated more favourably in the matter. When the supervisor told the other kitchen staff that they must ask permission before going on breaks the other staff members turned on the complainants and called them (in Hungarian) words translated by the Tribunal interpreter as “c**ts, f***ing c**ts, lesbians and bitches”. The interpreter explained that in Hungarian the word for bitch is considered extremely offensive.
3.12 One of the supervisors, R, appeared to be attracted to the second complainant. He was always flirting with her which made her feel uncomfortable as a result. He offered to give her English language lessons. She felt frightened by the offer because she did not wish to be alone with him. He asked her once to cook him a Hungarian dinner. She felt very uncomfortable and was shaking. She told her partner, the first complainant, who said to R that he was welcome for dinner but just if both complainants were at home. R laughed and walked away. On a number of occasions R touched and/or rubbed the second complainant on the shoulder which made her feel uncomfortable. The second complainant said that she did not say to R to stop but he ought to have picked up her negative feelings from her body language. As the complainants would be walking past him at work he would say: “Whoa, whoa, are you really lesbians I can’t believe it” or “Are you really a couple” or “Maybe you are lesbians because you have not found the right man in your lives”.
3.13 The complainants never got tips unlike other members of staff. They claim that in one night alone €500 was taken in tips but they received nothing. One member of staff told the first complainant that he made €200 in tips in one week.
The first complainant was reprimanded by a visiting female manager, in front of K, the restaurant manager, for wearing a black bra under a white shirt. The first respondent explained that she would change as she had white underwear with her in her bag. She was told not to do so as it was way too busy but to remember next time. The first complainant felt very embarrassed and humiliated by the incident.
3.14 On June 6, 2008 when the first complainant reported for work a *339 colleague N told her that the second complainant was no longer working. The first complainant rang Ml, the area manager to enquire. He informed her that they could not continue to employ the second complainant as there were not enough hours but that maybe he could find some hours for her in another branch. The first complainant was asked by him to relay this to the second complainant and to tell her that she was not required to work that day. The next day when the first complainant arrived for work there was a new woman in the washing-up area. The first complainant asked her what her position was and she answered “I’m a kitchen porter”, the post occupied by the second complainant. The new person had limited English. The first complainant believes the new person was Hungarian. The second complainant denies that she was offered and initially accepted hours in another branch.
3.15 On June 7, 2008 the first complainant arrived to work and was asked by R in an accusatory tone if she knew anything about €200 which was missing from the till since the previous day. The first complainant asked him was he accusing her of taking it and he did not reply. She was annoyed and angry about this. Also on that day R confronted her about a party of customers who, he said, had left without paying. He said it was her fault. She knew they had not paid her but she was sure they had paid another member of staff. She followed the customers out and asked whether they had paid. The customers produced a receipt and she relayed this to R. She requested an apology which she didn’t get. She called the restaurant manager K and told him she was leaving as she had had enough.
3.16 The first complainant tried to contact Ml, the area manager and K, the restaurant manager, but was unsuccessful in so doing. The first complainant was reprimanded by R for making phone calls on the job. The first complainant suffers from lupus and was feeling very bad and was dizzy. She felt she couldn’t stand on her legs and that she was going to fall. She made R aware of her medical condition and the necessity to avoid stress. She did not tell the restaurant manager about it. She again tried to call K, the restaurant manager, who answered the phone and she informed him of what happened, that she couldn’t stand it and that she wanted to leave. K replied “ok, leave”.
3.17 Consequent upon the foregoing and the conduct of the respondent, the first complainant felt she had no option but to leave her employment.
4 Summary of respondent’s case
4.1 The respondent denies that the two complainants were the only women employed in that branch of the restaurant chain and subsequent to the hearing presented written records purporting to show that other women were employed in the branch. The respondent admits that they did not furnish the complainants with a statement of their terms of employment or a contract of employment but since the complainants worked for less than two months there was no breach of the Terms of Employment Information Act 1994. The respondent also admits *340 that the complainants did not receive a copy of the grievance procedure but it denied that the respondent did not deploy, operate or adhere to the principles of the code of practice in this regard.
4.2 The respondent denies that the complainants were not furnished with pay-slips or a P45, and that it did not register the second complainant for tax with the Revenue Commissioners.
4.3 The restaurant manager, K, gave oral evidence at the hearing. He said that he is openly gay and had never experienced difficulties in his employment on account of his homosexuality. When the first complainant asked him whether there were vacancies as her girlfriend (the second complainant) was looking for work, he understood that she was referring to her partner. The fact that the respondent agreed to recruit the second complainant assuming her to be the same-sex partner of the first complainant shows that the respondent did not discriminate on the ground of sexual orientation in access to employment. There is nothing in the complainants’ case which supports claims of discrimination on the grounds of marital status or race. Nor were the management made aware of the first respondent’s medical condition so they could not have discriminated against her on the ground of disability. Insofar as she made her immediate supervisor aware of her disability she did not present any medical report and did not seek reasonable accommodation. She was not unfavourably treated on account of her disability.
4.4 The first complainant was given limited training because she claimed she had considerable experience as a waitress. The second complainant was hired as a kitchen porter who would do waitressing as needed. She made no objection to this arrangement at any stage. The respondent has no evidence that other staff were annoyed when she was taken on.
4.5 The respondent says that R is no longer in their employ and has returned home. He was not available to respond to the allegations against him. It is therefore impossible to test the veracity of the statements about his conduct. No complaints whatsoever were made about him during the course of his employment and he was remembered as a quiet and fairly shy individual without a great command of English. They doubt if R would have understood when the first complainant told him that she was suffering from lupus. In any event he did not inform management.
4.6 Staff became aware of the complainants’ relationship because they never hid the fact that they were a couple and would hold hands on their breaks and sometimes kiss and cuddle. As regards the derogatory comments alleged to have been made by S and R and other staff, they are no longer employed by the respondent and both have left the country. The veracity of the complaints against them cannot be tested. The respondent pointed out that the mobile phone numbers of the restaurant manager and the area manager were written up beside the till and, while in the short time the complainants worked there was not time *341 to make them aware of the grievance procedures, it is reasonable to assume that they would have contacted either of the managers to complain if they had suffered the harassment they allege.
As regards tips, the respondent’s policy was to give 70 per cent to floor staff and 30 per cent to kitchen staff. On average they worked out at 65 cent per hour worked. Trainees would not get tips for the first few weeks.
4.7 As regards the “black bra” incident, K was present and gave evidence that the female supervisor, Z, spoke to the first complainant about her wearing a black bra under a white shirt and said that she didn’t say it in a manner that would embarrass or humiliate her as alleged. K recalled that Z and the first complainant laughed and joked about the matter.
4.8 As regards the dispute about customers not paying, K recalled receiving a phone call from the first complainant and as a result he spoke to R. R said he noticed that customers at one of her tables appeared to walk out without paying. He then asked her if they had paid and she said yes they did. R noticed the docket which customers are required to bring to the till to pay was still on the table so he again asked the first complainant if she was sure they had paid and she said yes they must have. R then went and checked the last few orders that had been paid on the till and that bill wasn’t among them. He then spoke to the first complainant again and told her that the policy was that if people left without paying it would be taken from the daily tips. At this point the first complainant shouted at R saying that it wasn’t her fault and what could she do if they had already left. K recalls receiving a call from the first complainant and that she told him she was leaving. K asked her to wait until the following day as he was at a meal with his family and he needed to speak to both persons. She said “no way, I’m going home now”. Under duress he told her he would be there in half an hour but she hung up on him. When he went in R was on his own. He tried ringing the first complainant but she would not answer him. He informed Ml, the area manager who agreed to contact her.
4.9 The second complainant was told by Ml the area manager that he did not have enough hours at that branch but he offered to move her to another branch where she could get more hours and she initially agreed. Later the first complainant spoke to Ml and said she didn’t want the second complainant working in the other branch on her own because her English was not good, but Ml told her he didn’t have hours for the second complainant in the original branch. The first complainant then asked to be moved with her partner to the other branch but was informed that he did not have work for them both there.
4.10 The respondent denies that the second complainant was replaced, although it is possible that someone from another branch was present in the kitchen to be trained and was spoken to by the first complainant.
*342
5. Conclusions
5.1 The complainants claim that they were discriminated against on grounds of gender, marital status, sexual orientation and race within the meaning of s.6(2)(a), (b), (d) and (h) of the Employment Equality Acts 1998–2008 (hereinafter “the Acts”) in relation to access to employment, promotion or re-grading, training and conditions of employment and otherwise contrary to s.8 of the Acts.
5.2 The first complainant also alleges discrimination on the ground of disability (i.e. lupus) within the meaning of s.6(2)(g) and contrary to s.8 of the Acts.
5.3 The complainants also claim that they have been subject to harassment on the grounds of gender, marital status, sexual orientation and race and sexual harassment in the course of their employment with the respondent within the meaning of s.14A of the Acts.
5.4 The complainants allege they have been subject to victimisation within the meaning of s.74(2) of the Acts.
5.5 The first complainant alleges constructive discriminatory dismissal and the second complainant alleges discriminatory dismissal.
5.6 The complainants also allege that they have been subject to discrimination by association, within the meaning of s.6(b)(i) and (ii) of the Acts.
5.7 Section 6 provides that. for the purposes of the Acts and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which:
“(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are–
(a) that one is a woman and the other is a man (in this Act referred to as ‘the gender ground’),
(b) that they are of different marital status (in this Act referred to as ‘the marital status ground’),
… *343
(d) that they are of different sexual orientation (in this Act referred to as ‘the sexual orientation ground’),
…
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as ‘the disability ground’),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘the ground of race’),
Section 14A of the Acts provides:
“14A.–(1) For the purposes of this Act, where–
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is–
(i) employed at that place or by the same employer
…
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable–
(a) in a case where subsection (1)(a) applies … to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.
…
14A–(7)(a) In this section–
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
5.8 According to s.22 of the Acts, indirect discrimination occurs where an apparently neutral provision puts persons of a particular characteristic covered by the discriminatory grounds at a particular disadvantage compared with other employees of their employer, unless the provision is objectively justified *344 by a legitimate aim and the means of achieving that aim are appropriate and necessary.
5.9 In coming to my conclusions I have taken into consideration all the evidence, both written and oral, presented by the parties.
5.10 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainants. In Arturas Valpeters v Melbury Developments [2010] E.L.R. 64 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows:
“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
5.11 No argument or evidence for unfavourable treatment or harassment on the grounds of marital status was presented to me.
5.12 The complainants claim that the respondent did not furnish the complainants with any of the following documentation:
Statement of terms of employment or contract of employment
Grievance and disciplinary procedure
Bullying and harassment policy
5.13 They claim that this failure on the part of the respondent, while not contrary to the Terms of Employment (Information) Act 1994 put them, as foreigners, at a particular disadvantage in defending their rights compared to Irish people and therefore indirectly discriminated against them on the race ground. No actual *345 evidence other than mere assertion or speculation was presented to support this case.
5.14 As regards the claims of discrimination in relation to access to employment, promotion or re-grading, given that the complainants were actually recruited, the claim of discrimination in access to employment is misconceived. The complainants were employed for a matter of a few weeks so access to promotion or re-grading did not arise. The complainants have not established a prima facie case that they were discriminated against in access to training. As regards conditions of employment, the complainants argue that they were treated less favourably than their colleagues in terms of tips, tasks they were asked to undertake, breaks, etc. Assuming that these claims were true, the complainants have not, in my view, established a prima facie case that they were treated less favourably in these matters because of their nationality or national origin, gender, sexual orientation or (in the case of the first complainant) disability. It is more likely that they were treated less favourably because they were newly recruited trainees.
5.15 As regards the dismissal of the second complainant, I am not satisfied that she has established any facts from which I can infer that she was dismissed because of her gender, sexual orientation or race. The ostensible reason given was that there were not enough hours for her in that branch. The second complainant alleged that her colleagues were annoyed when she was recruited because there were not enough hours to go around. This, if true, points to a genuine redundancy situation. The complainants dispute that the second complainant was offered, and initially accepted, work in another branch only to change her mind when her partner could not be accommodated along with her. Even if the second complainant was replaced by another foreign woman, as she alleges (and as denied by the respondent), this does not support a claim of gender or racial discrimination.
5.16 The first complainant alleges that she was constructively dismissed on the grounds of gender, race and/or sexual orientation. Constructive discriminatory dismissal is where an employee is treated so badly by her employer on any of the discriminatory grounds that it would be unreasonable to expect her to remain in employment. In this case I believe that if the employer had been willing to facilitate both of the complainants by employing them in the same branch she would not have resigned. In my view it was the combination of being separated from her partner and her rows with her supervisor that precipitated her resignation. The first complainant has not established a prima facie case of constructive dismissal.
5.17 Both of the complainants have established a prima facie case that they were harassed by fellow employees of the respondent because they were lesbians and therefore were harassed on the grounds of sexual orientation and gender. The respondent has failed to prove the contrary. I have not been given *346 convincing evidence of the existence, at the time the harassment occurred, of an anti-harassment policy which had been effectively communicated to the employees. It is not sufficient to say that it was open to any employee who has been harassed or sexually harassed to contact the restaurant manager or area manager. Therefore I find that the respondent has not proved to my satisfaction that at the relevant time it had taken such steps as are reasonably practicable to prevent persons from harassing or sexually harassing the complainants or women or homosexuals generally. Given the sexual nature of the obscenities directed at the two complainants, I find that both of them were victims of sexual harassment as well. It is a duty on employers under the Acts to provide a workplace in which it is safe for lesbians and gay men to be open about their sexuality.
5.18 The complainants allege they have been subject to victimisation within the meaning of s.74(2) of the Acts. Victimisation has a specific meaning under the Acts. “Victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to:
“(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
The complainants have presented no evidence of any adverse treatment as a reaction to them taking any of the actions listed above. Therefore they have not established a prima facie case of victimisation.
5.19 The complainants also allege that they have been subject to discrimination by association, within the meaning of s.6(1)(b)(i) and (ii) of the Acts. Discrimination by association occurs where someone associated with a person who is covered by a specified ground is treated less favourably because of that association. The complainants claim that they each of them has been discriminated against because they are associated with each other. In my view the claim of discrimination by association is in this case misconceived. The discrimination occurs where a person is treated less favourably not because they are covered by a specific ground themselves but because they are associated with someone covered by that ground. For example, if a person who is not gay *347 is treated less favourably because they are friendly with a gay person, they are being discriminated against on the sexual orientation ground by association. In the current case the only situation where discrimination by association could arise is if the second complainant was discriminated against because she was the partner of someone suffering from lupus. No evidence to that effect was presented.
5.20 Finally, the claim by the first complainant of discrimination on the disability ground appears to be a claim of denial of reasonable accommodation, that is accommodation or measures put in place by the employer that are effective in meeting the needs of the employee with a disability. This requires a dialogue between the parties on the specific requirements of the employee. In this case the first complainant did not inform the respondent in sufficient detail of her medical condition or submit a medical report and state what adaptations she required. Therefore the employer was not in a position to respond.
6. Decision
6.1 In reaching my decision I have taken into account all the submissions, written and oral, that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with s.79(6) of the Employment Equality Acts 1998–2008.
6.2 I find that the complainants:
(1) Were not directly or indirectly discriminated against by the respondent on grounds of gender, marital status, sexual orientation and race within the meaning of s.6(2)(a), (b), (d) and (h) of the Employment Equality Acts 1998–2008 in relation to access to employment, promotion or re-grading, training and conditions of employment and otherwise contrary to s.8 of the Acts.
(2) The first complainant was not discriminated against by the respondent on the ground of disability within the meaning of s.6(2)(g) and contrary to ss.8 and 16 of the Acts.
(3) The complainants were subject to harassment on the grounds of gender and sexual orientation and sexual harassment in the course of their employment with the respondent within the meaning of s.14A of the Acts.
(4) The complainants were not subject to victimisation within the meaning of s.74(2) of the Acts.
(5) The first complainant was not constructively discriminatorily dismissed and the second complainant was not discriminatorily dismissed.
(6) The complainants were not subject to discrimination by association, within the meaning of s.6(1)(b)(i) and (ii) of the Acts.
6.3 I make an order for compensation for the effects of the acts of harassment and sexual harassment in the amount of €7,500 to each of the complainants. As this does not include any element of remuneration, it is not subject to income tax.
A Female Teacher v Board of Management of a Secondary School
Equality Tribunal
3 August 2012
[2013] 24 E.L.R. 16
(August 3, 2012)
1. Dispute
This dispute involves a claim by a female teacher (hereinafter “the complainant” ) that she:
(i) was discriminated against by the board of management of a secondary school (hereinafter “the respondent” ) in relation to conditions of employment on grounds of gender, in terms of s.6(2) of the Employment Equality Acts 1998–2008 (hereinafter “the Acts” ) and contrary to s.8 of the Acts by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the respondent afforded to other persons (“the comparators”) where the employment circumstances of the complainant and the comparators were not materially different; *18
(ii) was sexually harassed at her place of work by pupils of the respondent, which constitutes discrimination by the respondent in relation to the complainant’s conditions of employment under s.14A(1)(a)(iii) of the Acts; and
(iii) was victimised by the respondent (within the meaning of s.74(2) of the Acts) by being dismissed and otherwise adversely treated by them as a reaction to complaints of sexual harassment made by the complainant to the respondent.
2. Background
The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on November 11, 2008. A written submission was received from the complainant on July 6, 2009. A written submission was received from the respondent on December 1, 2009. As required by s.79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on May 9, 2011, June 9, 2011, June 21, 2011 and September 23, 2011. Both parties attended the hearing.
3. School disciplinary procedure
An explanation of the school disciplinary process is necessary to understand the evidence of both complainant and respondent. The School Guidelines and Code of Behaviour state that:
“A detailed and graduated series of school actions/responses will apply to deal with breaches of school guidelines. This will be in paralleled by pastoral guidance and a high level of home-school communication from the earliest stage.
Breach 1. Details of the incident will be accurately recorded in the class discipline book and signed by the reporting staff member [i.e. first booking]. At the end of the same school day, the head of discipline for the relevant class will dispatch a letter [Litir 1A] to the parent(s) guardian(s) notifying them of the discipline breach and the student is also interviewed by the head of discipline.
Breach 2. When/if a second booking is incurred, a second letter [Litir 2A] is sent to parent(s) guardian(s) the facility of a meeting with the relevant head of discipline is extended to the parent(s)/guardian(s) though not insisted upon.
Breach 3. A third letter [Litir 3A] is posted to parent(s)/guardian(s) notifying them of the third booking. The student is interviewed by the head of discipline and placed on a monitoring card for a period of five full school days. Parent(s)/guardians(s) may also be spoken with via telephone or at a personal meeting.”
The monitoring card system is central to the administration of monitoring/promotion of behaviour/improvement and must be afforded the highest level of respect by any involved pupil.
“A student on a monitoring card is obliged to
a) keep the card neat and tidy and on her/his person for the duration; *19
b) afford it the privacy of a private document between the student, parent(s)/guardian(s) and the school;
c) place it on the teacher’s desk at the start of each class and invite the teacher to mark and initial the appropriate slot at the end of class; and
d) ensure that the card is signed each night by parent(s)/guardian(s) and that the card is presented to the head of discipline the following morning before 11.45 am for countersigning.
e) The classroom teacher is obliged to award a mark according to the extent the student complies with the three criteria set out below:
ο Student is attentive and participates fully in class;
ο Courteous behaviour shown towards subject teacher and fellow students;
ο Uniform dress code and class materials/books presented as per standard required by school code of conduct.”
The possible marks are:
A for all three criteria
B for two of three
C for one of three
D for poor response to all three
E if there is an unsatisfactory response to all three
An E grade at any time will necessitate the student’s removal from class and may result in suspension.
Parent(s)/guardian(s) are obliged to sign the card each night and to support the school’s behaviour modification/improvement efforts by continually monitoring the grades and performance.
“Short circuit offence. Foirm Spesialta ‘A’ (FSA).
If a student is involved in behaviour which is unacceptable to any teacher/staff member (especially any form of disrespect) instant action may be taken. Another pupil (not the student involved) may be sent to the staff room to ask another teacher to stand in while the subject teacher or teacher on supervision duty completes a FSA and brings the student to the relevant head of discipline/deputy principal who will investigate the incident getting clear statements from the parties involved and other witnesses. The principal is involved only when all investigations are complete as she/he must impartially review the evidence before taking any action. All work in class must stop as an exemplary protest against such behaviour. The relevant head of discipline will consult with the principal as to the length of term of suspension which may apply.”
4. Summary of the complainant’s case
The complainant is a secondary school teacher of Irish and English. She was *20 employed by the respondent under a contract of indefinite duration dated July 26, 2007 to teach Irish and English to Leaving Cert (Higher) standard, religious studies to Leaving Cert standard, and social, political and health education and civic, social and political education to third year standard. The complainant gave up a permanent whole-time position in another school to take up the position in the respondent’s school for family reasons. While there was no explicit provision in the written contract of employment for a probationary period it is agreed by both parties that such a condition was understood and accepted. The complainant commenced employment with the respondent in September 2007.
The complainant alleges excessive supervision by the principal; damage to her car and discrimination in not being allowed park it safely; lack of support from the school management; sexual harassment by a number of male pupils; failure by the respondent to investigate her complaints of sexual harassment; negative assessment of her work as a consequence of her making sexual harassment allegations; and having her employment contract terminated as a reaction to her making such allegations.
5. Summary of respondent’s case.
The complainant made unsubstantiated allegations against a number of pupils. All alleged disciplinary claims made by the complainant were fully investigated by the respondent but no corroborating evidence of any type could be established. The respondents took the view that justice and fairness was best served by disregarding the allegations as no corroborating evidence was uncovered despite the thoroughness of the investigations which took place.
The respondent on June 5, 2008 decided not to offer the complainant a contract of employment for the following school year after hearing a report from the principal. The principal’s report to the respondent stated that
“having probated [the complainant’s] performance and assessed her overall suitability in this school with its ethos and traditions, I find that she has not satisfactorily completed her probation as such. I am reporting to the board of management that as principal of the school I am not satisfied that [the complainant] has satisfactorily completed the probationary period.”
The respondent argues that the decision not to renew the complainant’s contract was not a reaction to her claims of sexual harassment but because of her failure to adhere to disciplinary procedures, thereby exposing the school to threat of litigation and reputational damage.
6. Detailed allegations of complainant and respondent’s reply
6.1 Excessive supervision by principal
Complainant: Despite her considerable experience in teaching, the then principal *21 instructed her, on more than one occasion, what to teach in her classes. While the complainant was open to discussing class content and syllabi with the principal, she found it very unusual and somewhat disconcerting that he would intervene in this way.
Respondent: The then principal denies instructing the complainant on what to teach in her class and in his time as a principal since 1992 has never so instructed any teacher what to teach in his or her class.
6.2 Damage to car
Complainant: In or about October 2007, her car suffered minor damage while parked in the rear of the school. The car was scratched in several places, tippex was painted on the door handle and the air caps removed. The complainant began to park her car at the front of the school, albeit on double yellow lines. Because other teachers parked there, the complainant didn’t consider that this would cause a difficulty. After a number of days the principal instructed her to move her car notwithstanding that he did not suggest that any of the other teachers move their cars. In oral evidence the complainant said that other female teachers were allowed to park in front of the school. The complainant was of the view that the principal did not believe or was not concerned that her car was vandalised.
Respondent: The complainant approached the principal in October 2007 to say that air caps were being removed from her car. The car was parked in an area where pupils did not gather or congregate. The principal kept an eye on the car every day for a week and the complainant’s car was not interfered with in any respect during this period. The principal explained this to her at the end of the week. The complainant made no comment and did not raise the issue again. The complainant never raised any issue regarding tippex or scratches.
6.3 Sexual harassment by pupil A
Complainant: The complainant alleges that in January 2008 a third year pupil (pupil A) started to verbally sexually harass her in class. On January 10 he called her derogatory names in class including the words “slut” , “skank” and “whore” . The complainant states that she completed a FSA in respect to this pupil. She claims that she brought the pupil’s behaviour to the attention of the principal but no action was taken by him of any other manager. In oral evidence the complainant stated that she gave the teacher in charge of discipline a FSA on February 8, 2008 in respect of this pupil, four weeks after the first incident. The FSA as submitted at the hearing does not appear to make any reference to anything happening on January 10, 2008. It appears to make allegations that pupil A used offensive language in class in her hearing on January 21 and 28, 2008, muttering “uck off” under his breath and continuously using the word “slut” . *22 During oral evidence the complainant agreed that the form was amended later by her to include specific allegations that the words “slut” , “skank” and “bitch” were used by pupil A.
From March 31, 2008 the same pupil was on a monitoring card for one week for misbehaviour (not in the complainant’s class). The complainant gave him an E grade for his behaviour in her class twice in that week which would mean his suspension from school. The pupil appealed against this grading, denying any misbehaviour in her class. The complainant completed a FSA form on April 2, 2008 explaining her awarding “E” grades because he said the word “slut” in her class. She handed this to the vice-principal along with a copy of the FSA dated February 8, 2008. She also reported previous incidents of inappropriate language by him, namely on February 6, 2008, February 29, 2008 and March 4, 2008. The complainant claims that nothing was done to investigate her complaints.
Respondent: The respondent states that the allegations against pupil A were brought to the attention of the principal orally for the first time on January 31, 2008. If the issue did arise on January 10, 2008 it should have been brought immediately to the head of discipline by the next day at the latest. A delay of three weeks in bringing the issue to the attention of management meant it was not possible to hold an effective investigation.
The respondent claims that the FSAs dated February 8, 2008 and April 2, 2008 were not given to management until April 4, 2008, when the vice-principal asked the complainant why she had awarded an “E” grade for conduct to pupil A that week. The vice-principal advised the complainant that he could not proceed to investigate the “old” allegations. He did, however, investigate her allegation that pupil A had called her a slut that week. He questioned pupil A at length and questioned two other pupils who he knew to be truthful and who sat close to pupil A. Pupil A vehemently denied saying anything offensive in class and the two other pupils did not hear him say anything either. The vice-principal concluded that there was no evidence to support the complainant’s allegation. He was satisfied that his investigation was thorough.
6.4 Sexual harassment by pupil B
Complainant: The complainant states that on January 24 a first year pupil (pupil B) also referred to the complainant as a “slag” . The complainant asked to see the pupil at lunchtime after class and when she did so, she asked him to repeat the word he had used. He eventually admitted to saying the word “slow” . The complainant did not believe him. She spoke to the pupil’s mother about the incident at a parent teacher meeting that evening. A meeting with the pupil’s parents was held a number of days later. The complainant attended this meeting with the respondent’s head of discipline and the vice-principal. At the meeting the complainant accepted an apology from pupil B for talking in class, who *23 admitted talking but denied using offensive language. While the complainant considered that the head of discipline and the vice-principal gave her support, she was disappointed that the principal did not become involved or did not attempt to help the complainant in any way. The complainant stated that pupil B did not misbehave in her class again.
Respondent: The respondent rejects the criticism of the principal. Under the disciplinary code the principal is involved only when all investigations are complete as she/he must impartially review the evidence before taking any action. In this case the correct procedures were followed in that the head of discipline and the vice-principal investigated the complaint and resolved the matter. The pupil was given a severe warning by the vice-principal as to his future conduct.
6.5 Sexual harassment by pupil C.
Complainant: She states that on January 29, 2008 a third year pupil (pupil C) called her “a slapper and a bitch” in earshot of the class. The complainant called the vice-principal to her class and pupil C was removed from class. Five pupils were taken out of class to corroborate the story. The complainant completed an incident report form but pupil C was not suspended and she never received an apology.
On March 14, 2008 the same pupil, pupil C used the word “slut” in class. The complainant immediately filled in a FSA on the spot. She handed it to the principal who handed it back to her saying that it contained insufficient information.
Respondent: The respondent states that the complainant’s complaint was investigated immediately by the vice principal. Pupil C admitted losing his temper in class and shouting at the teacher when she accused him of name-calling. Pupil C swore to the vice-principal that he had not said anything insulting about the complainant. The vice-principal spent 45 minutes interviewing five pupils to find out what happened. No pupil, not even those sitting nearest to pupil C, heard him utter any insulting remarks. The vice-principal concluded his investigation and reported to the principal that as he was unable to verify the complainant’s allegations against pupil C they could not proceed with any sanction.
As regards the March 14, 2008 incident, the respondent states that the complainant had not been specific in her allegation, stating merely that pupil C was “argumentative in class” , which was an insufficient basis for an investigation.
6.6 Pupil D
Complainant: On February 29, 2008 a first year student (pupil D) called the complainant a “slut” in class. The complainant telephoned the pupil’s mother to report the incident. The mother informed the complainant that she would *24 deal with the issue. However, a day or so later the mother arrived at the school unannounced and said that her son was a “lovely boy” who would not engage in name-calling. The mother berated the complainant in a loud tone on the school corridor. The principal observed the scene and did nothing to calm the mother down or support the complainant. The complainant found the situation very distressing. Subsequently the principal asked the complainant about the matter. The complainant explained it. The complainant understands that the principal subsequently spoke to pupil D who denied that he engaged in name-calling. The principal took no further action.
Respondent: Although the complainant did not complete a FSA, the principal investigated the allegation. He spoke to the complainant, pupil D and four other pupils in the class. The complainant told him “I hear ‘slut’ in almost every class. It has been happening every single day.” The principal could not find any evidence of the term “slut” being used by pupil D on the day in question.
6.7 Incidents involving pupil E
6.7.1 Offensive drawing
The complainant produced at the hearing a page from an exercise book which appears to be a drawing of male sex organs scrawled over homework answers. The homework is dated November 27, 2007. In the corner the complainant has written the name of a pupil, pupil E, and the date January 10, 2008. The complainant claimed that this drawing was handed up to her on the latter date and was a clear case of sexual harassment. She made copies and brought it to the attention of the head of discipline but that the head of discipline did not order an investigation.
The respondents point out that this incident was not part of the original submission made by the complainant. The incident was fully investigated at the time. Pupil E was initially suspected but on investigation another pupil was found to be the culprit and was punished. The complainant was aware of the outcome of the investigation.
6.7.2 Name-calling and gestures
On March 13, 2008 the complainant met the principal for a probationary review. During the course of the meeting she alleged that pupil E and pupil F called her “slut” on February 20, 2008 but that she ignored them. When the principal asked about pupils B and D, she said that pupil D was quiet enough at the moment but that she was certain that he had called her a slut as had pupil B.
On May 9, 2008, the complainant wrote to the parents of pupil E a “Litir 1” complaining that he was disregarding teacher’s instructions and showing a lack of courtesy. The complainant commented in the letter that “the purpose of this document is to report on talking out of turn in class and disregarding classroom *25 rules” . Pupil E’s mother asked the complainant for a meeting to discuss the letter. According to the mother’s written record of the meeting, the complainant explained that pupil E was talking to another pupil and was asked to stand up. Pupil E asked why he was asked to stand and was told he was talking to another pupil. Pupil E denied this saying his hand was up seeking permission to go to the toilet. The complainant did not believe him and made him stand until the end of class. The complainant at the meeting with the parent went on to allege that pupil E had made “sexual gestures” to the complainant in November 2007 (i.e. six months previously) and on two occasions ( in February 2008 and on May 8, 2008, during the “standing up” episode) verbally abused her by saying “slut” . The parents were alarmed by these allegations and questioned their son. They were convinced by him that he was telling the truth when he denied the allegations. The parents wrote to the school seeking an urgent meeting, stating that:
“there is obviously some serious misunderstanding between [the complainant] and [pupil E] resulting in either [[upil E] being accused of sexual harassment towards his teacher and also a defamation of character towards [pupil E] and we feel that the truth in this matter needs to be sought and found by any means possible by the school itself or by our own means. All we want is the truth.”
The meeting sought by the parents was held on May 23, 2008. The principal, the vice-principal, the parents of pupil E and the complainant were in attendance. The parents complained that they would not have found out about the allegations against their son if they had not asked for a meeting with the teacher. The principal stated that neither of the alleged offences were reported or filed to anyone by the complainant. The first he knew about the allegation of February 20 was on March 13, too late to investigate. The other allegations he heard of on May 15. The principal promised to do his best to reinvestigate and report back to the parents. In the event the principal went back to a few pupils but could not investigate it properly due to lapse of time.
6.8 Other allegations
The respondent states that in all the complainant made allegations against eight pupils in six classes. Most of these allegations could not be investigated because the complainant did not follow the disciplinary code in making the complaints and were too late for a meaningful investigation. Those complaints that could be investigated were investigated. None could be substantiated. The respondent formed the view that the complaints lacked credibility, were damaging to the reputation of the school, were leading to threats of legal action by parents and were extremely distressing for the pupils involved.
6.9 Evidence of other teachers
In the course of the hearing, three teachers who were colleagues of the complainant *26 gave evidence. None was aware of the allegations of sexual harassment made by the complainant at the time. None was aware of reputational damage to the school at the time. One teacher had herself been a victim of sexual harassment by a pupil (not one of those against who the complainant made allegations) and stated that she was satisfied with the response of school management to her complaint and the sanction imposed on the pupil perpetrator. One teacher gave evidence that the complainant appeared flustered in school after Christmas 2007. She asked his advice on handling troublesome pupils. He said that some pupils had complained to him that the complainant couldn’t control the class. The pupils were worried about their exam prospects as the complainant’s class tended to degenerate into anarchy. He decided to observe the class unseen by the complainant and by the pupils with the intention of identifying the troublemakers. He witnessed a well-managed, normal, positive class.
7. Probation
The complainant alleges she was given an extremely negative probationary report by the principal as a reaction to her making sexual harassment complaints and not related to poor performance on her part. The principal denies this. It is clear from the principal’s own notes (supplied by the complainant) that the meeting focused on strategies for maintaining control in classes. During a discussion of disciplinary issues the complainant made further allegations of sexual harassment by pupils.
The complainant alleges that after the meeting the principal suggested that he or the vice-principal would supervise her classes. The respondent denies this saying that all he had in mind was keeping an eye on the class through the window in the door “to send the appropriate message out to students” .
A second probationary meeting was held on April 21, 2008 at the complainant’s request. This time the complainant was accompanied by the Association of Secondary Teachers (Ireland) (ASTI) shop steward. The meeting was concerned with the complainant attempting to counter what she saw as the negative tone of the principal’s report of their meeting of March 13, 2008. The shop steward in evidence at the hearing said that it was agreed at the meeting that the disciplinary issues including the sexual harassment allegations would put be put on a separate file and not included as part of the probationary review.
8. Termination of employment.
8.1 The principal prepared a note for the respondent dated May 29, 2008 on the performance of the complainant entitled “Matters that caused me serious concern” , as follows:
“1. Deficiency in work performance:
Failure to adhere to disciplinary procedures by failing to report alleged breaches *27 of discipline to the head of discipline, the deputy principal or principal in a timely fashion.
Example: Alleged breaches of discipline by [pupil E]. Her failure in immediate communication of behaviours exposes the board in respect of its legislative requirements under health and safety and discrimination legislation.
2. Non co-operation with the probation process.
Example: not agreeing to the principal visiting her classroom.”
8.2 The respondent met on June 5, 2008. The following is an extract from the minutes of the meeting.
“The principal made a statement to the board:
‘Having probated [the complainant’s] performance and assessed her overall suitability in this school with its ethos and traditions, I find that she has not satisfactorily completed her probation as such.
I am reporting to the board of management that as principal of the school I am not satisfied that [the complainant] has satisfactorily completed the probationary period.
… The principal made a statement to the board and he outlined matters that had caused him concern.
A delegation from ASTI comprising an industrial relations (IR) official and an executive member accompanied the complainant to the meeting.
It was put forward by the ASTI delegation having consulted the complainant that two examples pertaining to the complainant’s performance would be put forward by the principal and defended by the complainant. The principal outlined two examples of how the complainant had dealt with two pupils in the school. The complainant defended her actions with a detailed reply. When the complainant and the ASTI executive member withdrew, the ASTI IR official representing the complainant requested the board of management to consider granting the complainant a second probationary year where controls, deadlines, formal scheduled and meeting [sic] agreed by all parties would be put in place. He said that requirements under legislation could be legally set aside if the board was willing to grant such a request.
Having heard the principal’s report and the defence by the complainant of the allegations put forward, the principal, the complainant and the ASTI representatives withdrew while the board made its deliberations and came to its decision. The unanimous decision of the board was to terminate the contract of the complainant. This statement was conveyed to the principal:
As [the complainant] is on probation, the board feels that things haven’t worked out for her in this school and is terminating her contract of employment from August 31, 2008.’
This was conveyed to the complainant in writing by the principal.”
*28
9. Conclusions
I have considered all the evidence both written and oral presented to me.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In Arturs Valpeters v Melbury Developments [2010] E.L.R. 64, a recent determination by the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, the Labour Court held as follows:
“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
I shall now consider in turn each of the complaints of discrimination made by the complainant.
9.1 Excessive supervision by principal
Even if the allegation was true, it would not constitute discrimination under the Acts because the complainant has not presented any evidence that the principal treated her less favourably because she is a woman.
9.2 Damage to car
If the complainant’s car was vandalised, that does not constitute discrimination unless it is harassment on one of the discriminatory grounds. No evidence was presented that the complainant’s car was interfered with because she was a woman. Even if the allegation of unfavourable treatment in car parking (compared to other teachers) was true, it would not constitute discrimination on the gender ground since, by the complainant’s own admission, other female teachers were allowed park where she was not.
*29
9.3 Probation and dismissal
No evidence was presented that the complainant was dismissed because she was a woman. Further, no evidence was presented that the complainant was subject to greater scrutiny in probation because she was a woman. It was accepted by the complainant that her appointment was subject to a probationary period.
For these reasons I conclude that the complainant was not discriminated against on the gender ground in conditions of employment by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the respondent afforded to other persons.
10. Claims of sexual harassment
10.1 The complainant pointed out that whether conduct constitutes sexual harassment or not depends upon how the conduct was regarded by the recipient rather than upon the motive or intention of the perpetrator. The complainant’s case is that she reported incidents of what she considered sexual harassment to the school management but management’s response was inadequate. The complainant argues that the respondent failed to take such steps as are reasonably practicable to prevent pupils or fellow employees from sexually harassing the complainant or female teachers generally and therefore the respondent has no defence in law (under s.14A(2)(a) of the Acts) from a claim of discrimination.
10.2 The respondent argues that the complainant has not met the threshold of proving the primary facts on which she relies. The respondent maintains that it took all such steps as were reasonable to prevent any such harassment, which is denied, occurring and in this regard relies on s.14A(2) and s.15(3) of the Acts. The respondent also maintains that it has sufficient policies and guidelines in place to ensure a harassment-free workplace for all its employees.
10.3 The primary facts in this case are that certain pupils called the complainant certain names and, in one case, a sexually explicit drawing was handed in to her. The complainant must establish these facts before I can consider the adequacy of the response of management or the robustness of the procedures for dealing with such complaints.
10.4 Apart from the assertions of the complainant, there is no evidence to support her claims that the words complained of were actually spoken. All the alleged perpetrators denied saying the words. Where the complainant submitted her claims in time, the school management investigated thoroughly and could not find any eyewitness who heard the alleged perpetrators say the words claimed to have been heard by the complainant. All the alleged conduct happened in classes with significant numbers of pupils present. I note that the Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 states that the employer’s complaints procedure should make clear that in the course of investigating the complaints the employer will make no assumptions about the guilt of the alleged harasser. Therefore, in this case, the respondent is correct in concluding that *30 without some independent evidence from someone else present at the scene of the fact of the impugned words having been uttered, the respondent could not proceed to impose a sanction on the alleged perpetrator.
10.5 There was real evidence produced at the hearing in the form of a crude drawing of male sex organs scrawled on a pupil’s copy. It is clear from s.14A(7)(c) of the Acts that unwanted conduct of a sexual nature would include the production, display or circulation of such a drawing. Therefore, this incident constitutes a prima facie case of sexual harassment. The question then is this: is the respondent liable or can it avail of the defence in s.14A(2)?
10.6 Section 14A provides:
“14A.–(1) For the purposes of this Act, where
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is –
…
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
…
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable –
(a) in a case where subsection (1)(a) applies … to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim
…
(a) In this section –
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
10.7 In the case of the drawing, the respondent investigated the case and identified and punished the pupil responsible. An employer is required to take such steps as *31 are reasonably practicable to prevent sexual harassment occurring. As the Labour Court stated in A Boys’ Secondary School v Two Female Teachers Labour Court Determination AEE/01/9:
“…if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent harassment occurring or in reducing the extent of it, he/she will be directly liable for having subjected the employee to the harassment…It also appears to the court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do.”
10.8 In that case, although that school responded with severe penalties where offending students could be identified, the imposition of disciplinary sanctions was not in itself sufficient to alleviate or control the developing culture of sexual harassment. The school management in that case failed to fully accept the plain fact known by all the teachers that teachers were being sexually harassed at the school. In the present case, from the evidence given by other teachers at the hearing, while instances of sexual harassment have occurred, there is not a culture of sexual harassment in the school and the teachers were satisfied that disciplinary measures are effective. Moreover, in my view the combination of the respondent’s Dignity in the Workplace policy and the school guidelines and code of behaviour for pupils, when applied correctly, are an effective preventive measure against sexual harassment of staff by students. On that basis I distinguish the present case from the previous case on the facts. The respondent can avail of the defence of having taken such steps as are reasonably practicable to prevent sexual harassment taking place. I can conclude therefore that the respondent did not discriminate in relation to the complainant’s conditions of employment by failing to take such steps as were reasonably practicable to prevent her sexual harassment.
11. Victimisation
Section 74 (2) of the Acts defines victimisation as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, *32
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
11.1 The complainant claims that her employment contract was terminated as a reaction to a complaint of sexual harassment (which is a form of discrimination) made by her to her employer. The decision of the respondent was taken after the principal had withdrawn from the meeting. No one who was present when the decision was taken came to give evidence at the hearing. I must therefore decide what the reasons for the decision were, based on the submissions made to the respondent prior to their decision and from the official minutes of the board meeting.
11.2 It is clear to me that the effectiveness of the complainant as a teacher was not a factor in the respondent’s decision. No criticism was made of the complainant’s ability to teach the subjects she was employed to do. The principal prepared a note for the respondent dated May 29, 2008 on the performance of the complainant entitled “Matters that caused me serious concern” , as follows:
“1. Deficiency in work performance:
Failure to adhere to disciplinary procedures by failing to report alleged breaches of discipline to the head of discipline, the deputy principal or principal in a timely fashion.
Example: Alleged breaches of discipline by [pupil E]. Her failure in immediate communication of behaviours exposes the board in respect of its legislative requirements under health and safety and discrimination legislation.
2. Non co-operation with the probation process.
Example: not agreeing to the principal visiting her classroom.”
From the written and oral evidence of the then principal, I can discount as irrelevant to the decision to terminate the contract, the allegation of non co-operation with the probation process. It appears from the minutes of the board of management meeting that this issue was not discussed.
11.3 The then principal in oral evidence said that the focus of the discussions before he withdrew from the meeting was primarily on the complainant’s treatment of pupil E and of his parents. It is clear to me that if the complainant had not made allegations of sexual harassment her contract would not have been terminated. No witnesses could recall any other case in the school’s history of a teacher not being kept on after probation. The respondent seeks to distinguish between the form and substance of the complainant’s complaints; that it wasn’t for *33 making complaints of sexual harassment as such that she was dismissed but for making such complaints in a manner which caused harm. I note for example that in the case of pupil E, the complainant made an allegation of sexual harassment directly to the parent of the pupil, six months after the alleged event occurred. However I am not convinced by such fine distinctions.
11.4 Some witnesses for the respondent expressed the opinion that if her allegations had been proved she would not have lost her job, the implication being that it was not for making allegations of sexual harassment but for making false allegations that she was fired. Section 74 (2) not only protects those who make allegations which are upheld; it also protects those who make allegations which are not upheld.
11.5 I conclude that the complainant’s contract was terminated as a reaction to a complaint or complaints of discrimination (in the form of sexual harassment) made by her to her employer and that she was therefore victimised within the meaning of s.74 (2) of the Acts. The Acts do not provide for any defence by an employer which would justify victimisation. The arguments of the respondent that they were acting in the best interests of the whole school community cannot be entertained as a defence.
12. Redress
The complainant sought reinstatement. In my view it would not be in the best interests of all to order reinstatement in view of the obvious breakdown in relations within the school. Instead I award monetary compensation. In determining the level of compensation I take into account the devastating impact the loss of her job has had on the complainant’s career. From having a full-time job with a contract of indefinite duration on a salary of €50,000 a year, she is earning just €300 a week as a part-time teacher.
13. Decision
In reaching my decision I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with s.79(6) of the Employment Equality Acts 1998 to 2008. I find that the complainant:
1. Was not discriminated against by the respondent in relation to conditions of employment on grounds of gender, in terms of s.6(2) the Acts and contrary to s.8 of the Acts by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the respondent afforded to other persons (“the comparators”) where the employment circumstances of the complainant and the comparators were not materially different;
2. Was not sexually harassed at her place of work by pupils of the respondent, within the meaning of s.14A(1)(a)(iii) of the Acts; and *34
3. Was victimised by the respondent (within the meaning of s.74(2) of the Acts) by being dismissed by them as a reaction to complaints of sexual harassment made by the complainant to the respondent.
I make an order for compensation for the effects of the act of victimisation in the amount of €75,000 which corresponds to 18 months’ salary. As this does not include any element of remuneration, it is not subject to income tax.