The complainant worked in the Dundrum Café. His race is not apparent from the decision. However, the following is recorded as his evidence of the impugned incident:

The Complainant submits that he was subjected to harassment on the race grounds during an incident on 31st August 2012 by his manager (Line Manager) where his Line Manager greeted him with foul language, tried to kick him and this was met with laughter and derision from five other staff members.

The Complainant further submitted that during the ensuing conversation with his Line Manager, that when asking him about cleaning a fryer, his Line Manager responded loudly: “It was dirty like your f*****g face”. This was not disputed by the respondent who did not have a policy in place that might have prevented the incident but who undertook an investigation and by all accounts conducted itself appropriately once the incident came to light. It was not in a position to move the alleged harasser.

The Equality Officer found that the respondent could not avail of the statutory defence in the absence of preventative actions such as a policy. However, the complainant’s claim was upheld and he was awarded €500. Redress is required under the Acts for the effects of the discrimination on the victim and this is often regardless of any subsequent action on the part of the employer. In some situations subsequent action can reduce the effects of discrimination/harassment and it is therefore considered in such cases.

In this case, the employer was not in a position to remove the line-manager. The extraordinary behaviour complained of in this case is covered by the Race Directive, Council Directive 2000/43/EC of 29 June 2000, which has a specific provision relating to harassment.

The original Employment Equality Act was amended in 2004 to implement this Directive. The Directive requires that “The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive”. While of course the Race Directive does not refer to nationality and while the race or nationality of the complainant is not identified, all references in the Decision relate to race rather than nationality, ethnic origin etc and it is therefore assumed that race is the relevant provision.

Why is this case of interest? It is a useful reminder to employers that prevention is better than cure in that a perfect investigation while useful cannot achieve the preventive action required in order to avail of the defence. However, the award in this case suggests it is worth the risk to employers since the preparation of a policy would likely cost more that €500.