Case Reference: Pamela McCann v Homebase House & Garden Centre Limited (UD 470/2009)
Legislation: Unfair Dismissals Acts, 1997 TO 2007 (the “Acts”)
Jurisdictions/Subject Matter: Constructive Dismissal and Sexual Harassment

A decision in the above case was recently delivered by the Employment Appeals Tribunal. We asked David Fagan to set out details of the case and review legal entitlements around constructive dismissal and sexual harassment in the workplace.


Facts

The claimant/employee began working as a showroom manager for the respondent employer in June 2007. At the start, the employee had a good working relationship with her manager. However, this changed when she complained to the HR department that her manager began making vulgar comments about her body.

In December 2008, a member of HR met with the employee and the manager. The employee alleged that she was never given the option of taking a grievance against her manager. During the meeting, the manager apologised to the employee and they agreed to continue working together.

In February 2008, the employee requested to be re-deployed within the store, claiming she was even willing to be demoted. Her reasons were that she was under a lot of pressure from her manager, her working relationship with him was intolerable, she had no support in her role and she was being undermined in front of her staff.

After a series of further incidents, the employee went on certified sick leave from 29 August 2008 citing stress. She submitted her resignation on 28 September 2008. Her employment ended on 28 October 2008. The employee stated that she had raised the issues which led to her resignation over the previous six months but they were not resolved. The employee felt she had no choice but to resign.


Determination

The Tribunal was satisfied that the manager made remarks to the employee that could reasonably be regarded as sexually offensive, humiliating or intimidating. The Tribunal was of the view that the HR department took the side of the manager and did not monitor the situation or support the employee.

The Tribunal found that it was reasonable for the employee to terminate her contract when she did and further, that the employer’s handling of the situation was unreasonable.

The Tribunal found that the employee was unfairly dismissed and, taking all the evidence as to loss into account, the employee was awarded €7,394.00 under the Acts.

Although the award was quite low (as these cases go), the main factor in assessing the size of the award is usually the financial loss suffered by the employee.


Legal Review

(a) Sexual Harassment

The employee in the above case was subjected to inappropriate comments by her manager. Sexual harassment is any form of “unwanted verbal, non-verbal or physical conduct of a sexual nature” which “has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The Code of Practice on Sexual Harassment and Harassment at Work states:

“The intention of the perpetrator of the sexual harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing the employee is no defence. The effect of the behaviour on the employee is what’s important”.

In the above case, although the Tribunal did not feel there was a sinister motive behind the manager’s remarks, the Tribunal focused on the effect the remarks had on the employee.

Employers need to address complaints of harassment quickly and decisively in accordance with their policies, as employers can be held vicariously liable for sexual harassment carried out by one of their employees. Therefore, there is a high onus on employers to treat all such claims seriously.

(b) Constructive Dismissal

Constructive dismissal arises where an employee terminates their contract of employment, with or without prior notice, due to the conduct their employer.

Where an employee terminates their employment and claims constructive dismissal under the unfair dismissals legislation, the onus rests on the employee to prove that the resignation was justified.

Subject to limited exceptions under the Acts, an employee must have 12 months continuous service with an employer to bring a claim for unfair dismissal. Any claims must be made within 6 months of the date of the termination of employment (extendable to 12 months in cases where exceptional circumstances have prevented the lodgement of the claim within 6 months).

An employee is entitled to regard their contract as terminated if:

1. The employer's conduct amounts to an actual breach of the contract of employment or, although it falls short of such a breach, is serious enough to warrant resignation;
2. The employer's conduct shows that it no longer intends to be bound by one or more of the essential terms of the contract;
3. The employer has acted unreasonably.