The complainant was employed by a major retailer as a general operative/sales assistant who worked exclusively at night stacking shelves. Two male workers performed similar duties in an adjacent aisle. It is the behaviour of these male workers, one in particular, that is the subject of the complaint. The complainant raised her difficulties with her manager on occasion but eventually she reported her difficulties directly to HR. The manager had a diary in which he recorded serious incidents but none of the incidents complained of by the complainant were recorded in it. 

The respondent raised the timeliness of some incidents as they took place outside the six months prior to the complaint to the Tribunal. The Labour Court decided to consider if the incidents were “sufficiently connected to any acts which occurred within the time limit so as to constitute a continuum” in line with EDA1124 Ann Hurley v Co. Cork VEC. It found that they were.

In looking at the relevant law the Court quoted section 14A, the Framework Directive, the EU Commission Recommendation (92/131/EEC) and SI 208/2012. The Court concluded that the defence included in s14A(2)(a) was the only defence available to the respondent and quoted EDA0915, a 2009 case which stated, inter alia, “Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations”.

The Court went on to conclude “the statutory definition of sexual harassment includes conduct that created an “offensive environment for the person”. It follows that, in the case of offending verbal conduct, the comments complained of need not necessarily be addressed to or directed at the victim.”

The Court took account of the complainant’s demeanour, the managers’ evidence, the hearsay evidence of the two individuals accused of the impugned behaviour who were not witnesses before the Court, and found that where conflict arose the complainant’s evidence was to be preferred.

Perhaps the most interesting aspect of this case is how the Court considered that any actions subsequent to the incidents complained of, including the respondent’s investigation, were not relevant to the questions the Court had to decide. In other words any investigation undertaken by the respondent was irrelevant in terms of the defence.

Prior to this, many thought that having preventive measures such as appropriate policies combined with appropriate actions on receipt of a complaint were what was necessary to secure the defence. The Court considered that “to avail of the statutory defence the focus must be on the adequacy of any antecedent measures taken by the respondent to prevent the type of conduct giving rise to these complaints”. It took account of the policy being in English only, not the native language of the perpetrators, and that no evidence concerning their competency in reading English had been presented.

However, in this case the Court also considered the actions and knowledge of the manager and found them wanting – “Nor is the Court satisfied that the import or importance of the policy was properly or adequately understood by the Complainant’s manager in the store”, responsible for its implementation. The Court found that the respondent did not have adequate arrangements in place to ensure that the content of, and importance of adherence to, that policy was properly understood by the Managers who were responsible for its implementation. On that basis the Court found that the respondent did not take such steps as were reasonably practicable and therefore could not avail of the defence.

The Equality Tribunal Decision was set aside and the complainant awarded €15,000.

Why is this case of interest?

* Have your managers undertaken appropriate awareness training?
* The failure of a manager to recognise and act on complaints has been the cause of the employer being unable to avail of the statutory defence in this case.
* Harassment need not be directed at the complainant personally.
* The assessment of the evidence is a useful case-study for investigators in your workplace.
* Preventative measures must be the focus of the defence.
* Have your employees indicated that they have read and understood the policy?
* The policy must be disseminated and in a language which is understood by staff