Background ⚓︎

The Complainant commenced employment with Dublin City University (DCU) on the 27th November 2017 as Foundation Programme Co-Ordinator at the International Student Department. Her salary was €46,620 per annum. The Complainant alleged that she was sexually harassed, discriminated against and victimised contrary to the Employment Equality Acts 1998 – 2015 (EEA).

The Complainant's case ⚓︎

The Complainant submitted that, upon joining DCU, there were a number of issues within the Department which she had not been informed of. She claimed she was not provided with a desk on her first day, she was not introduced to colleagues and was not provided with correct instructions or training for certain aspects of her role.

The Complainant had a first probation meeting in May 2018 and she claims that, during the meeting, her line manager attempted to blame her for various legacy issues which were there before she arrived. At the end of another probation meeting, the Complainant claimed that a discussion took place about a picture hanging on the wall and that the manager went on to make an inappropriate and sexually explicit comment.

Over the course of the following months, the Complainant submitted that the line manager was repeatedly disrespectful and aggressive towards her in front of other staff members. After one alleged incident in September 2018, the Complainant attended the manager's office and complained to him about this treatment and asked to be treated with respect. She also indicated that she was going to report him. After this, the Complainant reported the behaviour to her new line manager, Ms. C and asked her to intervene on her behalf. Ms. C sent the Complainant an email on the 3rd October 2018 confirming she had spoken to the former line manager about the Complainant's concerns and his conduct.

After raising the issue with Ms. C, the Complainant was unexpectedly called to a further probation meeting on the 2nd October by the former line manager and during the meeting he criticised the Complainant's performance. The Complainant was given 21 days to complete a series of actions for improvement and warned that failure to improve could lead to her failing her probation.

The Complaint submitted a formal complaint on the 26th November 2018 about the former line manager's management of the probation process and also a complaint alleging sexual harassment and bullying by the former line manager.

Days later, on the 5th November 2018, the Respondent decided that the Complainant did not pass her probation and terminated her employment with effect from the 2nd November 2018 and paid her in lieu of notice.

The Respondent's position ⚓︎

The Respondent accepted that the comment was made by the former line manager but claimed that it was not intended to cause offence, and that the Complainant's reaction had been disproportionate.

The Respondent submitted that having considered the probation assessment reports and the issues arising, it was of the view that the Complainant had failed to pass her probation. The Complainant was given 24 hours to respond to the probation assessment report. She was also given an opportunity to provide her views as to why her employment should not be terminated. Having considered the Complainant's written submissions in this regard, the Respondent remained of the view that the Complainant had not passed her probation period.

Sexual Harassment ⚓︎

Section 14 (A) 7 of the EEA provides that:

(i)"References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and

(ii) References to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature

 Being conduct which in either case has the purposes or effect of violating a personal's dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person. "

In relation to the comment made by the former line manager, the Complainant claimed that the comment was of a sexist and gender specific nature.

The Respondent asserted that the comment had been made in the presence of another female and was not directed at the Complainant, and therefore it did not have the 'purpose' of violating her dignity. The Respondent further claimed that a once-off comment could not have had the purpose of creating an intimidating, hostile, degrading or offensive environment for her. It also claimed that the Complainant made no issue about the comment until the 26th October, when she put in a written complaint. The Respondent submitted that the manager was not given an opportunity to apologise and had he been aware that the remark caused such offence, he would have apologised.

The Respondent further sought to rely on the statutory defence that it took steps to prevent sexual harassment. The Respondent had a dignity at work policy and a grievance procedure which was fully accessible to all staff. The line manager had received equality training and had also given training to others while in the role of Director of Equality.

Victimisation ⚓︎

The Complainant also claimed that she had been victimised when the Respondent dismissed her from employment a number of days after she had made a complaint regarding harassment. The Complainant had approached HR personnel and reported an informal complaint of harassment by her former line manager and this was subsequently raised with him by HR.

The Respondent denied that the Complainant was victimised or dismissed, but that she failed to pass her probation.

Section 74 (2) of the EEA defines victimisation in the workplace as occurring when an employee is threatened, treated adversely or dismissed because they had taken action referred to in section 74 (2) of the EEA. This includes 'making a complaint of discrimination against your employer.'

Outcome ⚓︎

The Adjudication Officer concluded that the Complainant had established a prima facie case of sexual harassment contrary to section 14A of the EEA based on the single comment of a sexual nature directed at the Complainant by her former line manager. However, the AO found that the statutory defence under section 14A (2) applied in this instance and successfully rebutted the case raised.

In relation to the victimisation claim, the AO was satisfied that the sequence of events leading to the Complaint failing her probation period and to her ultimate dismissal, had raised a number of instances in which adverse treatment could be inferred and which raised a prima facie case of victimisation within the meaning of the Act. The AO found the Complainant had been victimised and awarded the compensation in the amount of €27,500 (approx. 7 months' pay) for distress caused by the effects of the victimisation.

Comments ⚓︎

This decision demonstrates the importance of having a robust Dignity at Work Policy in place and providing appropriate training to staff in relation to bullying, harassment and sexual harassment. In this case, sexual harassment was found to have occurred however, the employer could rely on the statutory defence because of the steps it had taken regarding its policies and staff training.

This case serves as a further reminder that employees do not require 12 months service to bring claims under the Employment Equality Acts. The employee had just over 11 months service at the date of her dismissal and although the employer went through a form of probationary process before terminating the employee, the specific facts and in particular the timing of the dismissal, gave rise to a prima facie case of victimisation under the Employment Equality Acts.

A copy of the WRC's decision can be found here:
https://www.workplacerelations.ie/en/cases/2021/may/adj-00020428.html