This is certainly a cautionary tale for employers who might ‘win the battle’ over substantive complaints of discrimination and harassment but ‘lose the war’ over a victimisation complaint. It also shows how difficult, but necessary, it is to apply equality principles in a school environment.

The complainant had a range of complaints against her employer, primarily involving allegations of verbal sexual harassment by five students. In some cases, she initiated the school’s disciplinary procedure and investigations took place. Other students were interviewed as part of these processes and there was not sufficient evidence to verify the complainant’s allegations. The Director of the Tribunal rejected these complaints on the basis that the school had followed its procedures and had robust harassment policies in place. There was a further complaint of harassment involving a pornographic drawing but here the school had dealt adequately with the matter.

This aspect of the case is interesting as it is clear that section 14A (and section 32) of the Employment Equality Acts covers what may be described as ‘third party harassment’, namely harassment of an employee by a non-employee, in this case, the students. This is a controversial issue in Great Britain, where the Government intends to repeal third party harassment provisions in the Equality Act 2010 as being ‘unworkable’. However it would appear that the Irish position is compatible with the harassment provisions in the EU Equality Directives, at least according to English authorities, such as Equal Opportunities Commission v Secretary of State for Trade & Industry [2007] EWHC 483.

Nonetheless, the case shows both the difficulties of establishing a harassment case, particularly in a school environment, and the necessity to have robust policies and procedures, including for third party harassment, which are adequately applied.

On the second major element of the complaint, the complainant was successful. At the end of the complainant’s probation period, the Principal gave a damning report to the Board of Governors and she was dismissed. Here, the Tribunal concluded that she would not have received such a report and would not have been dismissed if she had not made her complaints, even if they were considered to be unfounded. So it is important not only to follow correct procedures when dealing with harassment cases but also to ensure that the complainant does not suffer any detriment, even if the complaints are not upheld.

She was awarded €75,000 compensation for the effects of the act of victimisation.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-103-Full-Case-Report.html