The Complainant commenced working as a waitress in the Respondent’s café in August 2021. About four weeks later, she left due to what she claimed was an offensive and humiliating remark the Respondent made, which caused her to be too upset to continue in her job.

In advance of the hearing, the Complainant submitted a written statement in which she explained the Respondent Manager lifted her jacket and told her she was not permitted to wear leggings because they “made her ass too sexy.”

The Complainant submitted she was in shock and had a panic attack after the Respondent made these remarks.   She said the Respondent told her to calm down and not to over-react.  As the Complainant got her bag and coat to leave, the Respondent Manager stood in the doorway and tried to give her a hug.  Shortly thereafter, the Complainant requested access to CCTV footage of the incident, however, the Respondent refused her request.

When she arrived home, her father rang the Gardaí and a Garda came to her house and took her statement.  A few days later, she was still having panic attacks and was prescribed anti-anxiety medication.

At the hearing, the Complainant produced her phone and showed a text message she received from another waitress working that evening.  This employee said “he thought it was okay” and she would tell him he couldn’t make such comments and he wouldn’t do it again.  She asked the Complainant to come back to work.

The Complainant added other waitresses in the Respondent’s café also wore leggings to work.

The Respondent stated the Complainant was dressed inappropriately for work and he had spoken to her previously about the dress code.  The Respondent said she looked like she was coming from the gym and he told her she “couldn’t work like that.”

The Respondent submitted he employed eight people in the restaurant and for the last 10 years and had been in the restaurant industry for 20 years, and never had a complaint made about him.

The Adjudication Officer submitted conduct the Complainant claims resulted in her leaving her job falls within the definition of sexual harassment, as it was an unwanted remark that was a violation of her dignity which made her work environment intimidating and humiliating.

The Adjudication Officer noted the test for establishing if certain conduct constitutes sexual harassment is a subjective one, and not based on the response of another reasonable person.  It was clear from the Complainant’s evidence the conduct had the effect of violating her dignity and creating an intimidating and offensive environment for her at her place of work.

Considering these findings, the Adjudication Officer was satisfied the remark was sexual harassment and the Complainant showed she was discriminated against on the ground of gender.

The Respondent provided no evidence that he had a dignity at work policy or that he has trained his employees in how to identify and deal with sexual harassment.

Accordingly, the Adjudication Officer awarded the sum of €2,500 in compensation for the Complainant.

Guidance for Employers:

The burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

In this particular case, for the Complainant to succeed in her complaint, the first hurdle she had to overcome was to provide evidence to the Adjudication Officer that as a female, she was treated in a manner that was intimidating, humiliating, offensive, hostile or degrading.

This case also reminds employers to have a Dignity at Work policy and to ensure staff are aware of the policy and offered training on what is acceptable behaviour in the workplace.

The full case is available here:
https://www.workplacerelations.ie/en/cases/2022/september/adj-00035326.html