In the first of our new Equality feature by DWF, Alison Martin, Associate Solicitor in the Employment Group at DWF, discusses a recent Adjudication case which provides an important reminder to employers of the need to have a specific harassment policy in order to be able to deal with complaints of harassment appropriately and to also be able to rely on the statutory defence provided for in section 14A(2)(a) of the Equality Acts.

With Dublin's LGBTQ 2019 Pride Festival due to take place around now, it serves as a timely reminder for employers of their obligations under the Employment Equality Acts 1988-2015 ("the Acts) in respect of an employee's sexual orientation.

The recent case of A Manager v A Restaurant, ADJ00015191 came before the Workplace Relations Commission and specifically dealt with the issue of harassment as a form of discrimination on the grounds of sexual orientation.

Background to the case ⚓︎

The Complainant was a bar manager and started work with the Respondent in November 2016. At the hearing, the Complainant gave a number of examples of offensive comments made to him at work by two directors of the company, which included being referred to as a "queer" on a regular basis. The Complainant also said that he received a WhatsApp message from ‘Director A’ on June 24th, 2017 wishing him “Happy Pride Day ye Big Queer”.

Director A denied ever using the name "queer" in conversation with the Complainant but accepted he sent a WhatsApp message wishing the Complainant a happy Gay Pride and calling him a "big queer" with laughing emojis. The Director said that this was meant as a joke and that he had banter with the Complainant about his sexual orientation.

Harassment ⚓︎

Harassment is defined in section 14A(7) of the Acts as "any form of unwanted conduct related to any of the discriminatory grounds 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". Harassment is prohibited under the Acts.

Based on the evidence, the Adjudication Officer was satisfied that the Complainant was subjected to offensive comments and name-calling during the course of his employment, which violated his dignity at work.

The Adjudication Officer was also satisfied that the offensive name calling constituted less favourable treatment of the Complainant on the grounds of sexual orientation, as a person of a different sexual orientation would not have been called such offensive names and ultimately found that the Complainant had raised a prima facie case of harassment contrary to the Acts.

Considering the evidence on behalf of the Respondent, the Adjudication Officer decided that the Respondent failed to rebut the prima facie case established by the Complainant.

Statutory defence ⚓︎

In cases of harassment and sexual harassment, section 14A(2)(a) of the Acts provides a statutory defence for employers where they can show that they took steps to prevent harassment.

While the Respondent, in this case, did have an Employee Handbook which included a mission statement in relation to equality and the nine discriminatory grounds, it did not contain a policy or procedure in relation to the prevention of harassment or any procedures for making a complaint of harassment. This was significant and although the Employee Handbook contained a grievance procedure, the Adjudication Officer was of the view that this was not an appropriate policy to deal with serious allegations of harassment and sexual harassment. Consequently, the Respondent could not avail of the statutory defence provided for in section 14A(2)(a) of the Acts as it was found that it did not have any measures in place to prevent harassment in the workplace.

Outcome of the case ⚓︎

The Complainant was awarded compensation of €20,000 (just over 6 months' pay) for the breach of his right to dignity at work and the distress caused to him by the harassment.

The Respondent was also directed to draw up a policy that provides for the prevention of harassment on the nine grounds of discrimination under the Acts, to effectively communicate this policy to all staff and to provide training to staff to ensure familiarity with the terms of the policy.

What should employers take from this decision? ⚓︎

This case serves as an important reminder for employers to ensure it has appropriate policies and procedures in place that are fit for purpose. Had the Respondent employer had an appropriate complaints procedure in respect of allegations of harassment, it may have successfully relied on the statutory defence provided for in section 14A(2)(a) of the Acts.

While it is important for employers to have appropriate policies and procedures in place, it is equally important for employers to ensure that these policies and procedures are implemented and effectively communicated to all staff members. Staff training is also recommend in order to clearly outline the behaviours expected of employees in the workplace.