Background:

The matter appeared before the Labour Court on appeal by the Complainant after an Adjudication Officer found her complaint to be not well founded.

The Complainant, a bar worker, received a text from a regular customer of the Respondent’s business, “Mr D”, that was explicitly sexual in nature and made the Complainant very uncomfortable. The Complainant made a complaint to her employer, who contacted An Garda Síochána. An Garda Síochána advised the message constituted sexual harassment, perhaps at a criminal level. The Complainant and Respondent agreed that Mr D would be barred from the premises, which was agreeable to all parties, but after five months, the Complainant saw Mr D on the at the bar multiple times, once attempting to make friendly contact with her. The Respondent manager, Mr B, said that Mr D had been “barred” for six months but that he was now entitled to return, and that the Respondent could not “bar” every person who had inappropriate sexual thoughts about the Complainant. The Complainant resigned shortly after this and claimed her resignation was in fact a constructive unfair dismissal.

In response, the Respondent said it did not in any way condone the behaviour and had acted quickly once notified of it. Mr B said that it had been agreed that the length of time of the “bar” would be six months and that Mr D would apologise to the Complainant and undertake to note repeat the behaviour in question. When Mr D returned it was at then end of this period. The Complainant did not have to serve Mr D and did not engage in the formal grievance procedures prior to her resignation.

Outcome:

The Court overturned the decision of the Adjudication Officer and found that the decision to allow Mr B to return was in any case within to the six month period alleged to have been agreed by the Respondent and Complainant, and doing so was behaviour so unreasonable that the Complainant could not be expected to put up with it. The Complainant’s failure to engage in the grievance procedure was not fatal to this claim where the initial incident and other matters were dealt with directly by the Managing Director without the need for formalities. Having regard to the circumstances, including the Complainant’s failure to consistently adequately mitigate her losses, the Labour Court awarded her €15,000.

Practical Guidance for Employers:

Employers cannot control the behaviour of their customers, but they can and must respond to anything customers do which undermine the dignity of their employees. This may mean a in indefinite ban of customers who sexually harass or demean staff members, even if those customers are “regulars.” In any case, having some formalised, written process for handling such incidents is essential to defend against a claim down the line.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/july/udd2322.html