Both cases considered here address section 14A.  In the first ADJ-00002040, the adjudicator took positions relating to the consideration of reasonable cause for extension of time and the application of the defence which are departures from the normal approach adopted in such cases.  The claim was defended but the adjudicator preferred the complainant’s evidence and awarded one year’s salary.

In the second, ADJ-00001718, the adjudicator upheld sexual harassment of the most offensive and flagrant nature.  The claim was not defended and the award was €40,000.


1. ADJ-00002040

Issues: Race (nationality), harassment on the race ground, part-entitlement to defence in s14A, reasonable cause to extend time

The complainant alleged harassment on the race ground based on her Polish nationality.  The respondent argued that the complaint was out of time.  The adjudicator found that because the complainant co-operated with the workplace investigation she had acted reasonably and as this constituted reasonable cause for her delay in submitting her claim the time was extended to permit the claim be heard.  This appears to be a departure from the normal understanding of reasonable cause.

The decision appears to turn on the acceptance of the complainant’s evidence in preference to the respondent’s.  The respondent asserted that it did not receive a complaint in writing until January 2016 although the complainant first raised the matter verbally in June 2015.  By 1 July 2015, an external investigator appointed by the respondent commenced work.  The respondent asserted that the complainant did not co-operate with the investigation while the complainant asserted she was content not to lodge a complaint with the WRC until she understood that witnesses she wanted heard were not to be interviewed.  Normally, such matters could be established as facts relatively easily, for example, whether the complainant did or did not lodge a written complaint and whether the records of interview indicated cooperation or not.

As always, it may be that facts were known to the adjudicator that are not included in the decision but it is clear that the complainant succeeded in her complaint based on her credibility and her version of events being preferred.  The adjudicator accepted her alleged incidents of harassment and upheld them as harassment in accordance with section 14A of the Acts.  Then it is a matter for the employer to show whether they are entitled to avail of the statutory defence contained in section 14A specifically relating to cases of harassment.  The defence considers whether everything practicable had been done to prevent the harassment.  The adjudicator concluded that the employer was entitled to avail of the defence partially.  The employer had a policy and had acted quickly to have an investigation undertaken.  The adjudicator appears to take account of the difference in the demeanour of the respondent in the first and second meetings with the complainant and to suggest that somehow this prevents the employer from availing of the defence.  It was alleged that the respondent accepted that the alleged harasser could be difficult at the first meeting while reporting that the alleged harasser denied the allegations at the second meeting.  No further information is available in respect of what the adjudicator saw as important in this, what seems to be an empathetic first meeting and a more cautious approach to two employees clearly in dispute in the second.  This is all the more puzzling as the test is such practicable actions necessary to have prevented the harassment and these two meeting took place after the harassment.  The fact that an independent investigator was appointed is considered in circumstances where the alleged harasser was the sister of the owner but this does not avail the employer either.

The notion of the employer being entitled to “rely on a partial defence” is another significant departure from the normal handling of such cases.  The finding that the employer’s demeanour at a meeting subsequent to the impugned events in circumstances where the verbal complaints were noted and acted upon quickly is also a departure from the norm.  The case also appears to contradict the Labour Court in EDA163 where it found the employer could not avail of the defence because the manager did not recognise the complainant’s allegations as allegations of sexual harassment.  His lack of training meant the employer had not done everything practicable to prevent the harassment.  In this case, however, the employer had, based on the information presented, recognised and acted upon the information.

The complainant was awarded one year’s salary and perhaps this is significant in circumstances where two years would have amounted to just over €17000 if the effects of the harassment had been considered significant, or indeed where an award of €40,000 would also have been possible as in the case below, ADJ-00001718.

Why is this case of interest?

Issues: Sexual harassment, section 14A

The complainant alleged sexual harassment by the person who operated and controlled the business which took the form of unwelcome sexualized comments, repeated unwelcome sexualised propositioning, sexual assault (in the form of smacking her bottom, feeling her breasts, squeezing her and gyrating against her bottom and otherwise manhandling. The complainant alleged she rejected the behaviours.

The complainant submitted screenshots of highly sexualised texts in addition to particularly lewd and offensive pornographic images.

The adjudicator was satisfied that “the complainant has established strong and powerful case from which the acts of discrimination can be readily inferred”.  As the respondent did not engage with the WRC no rebuttal was presented.

The adjudicator found the complainant was “discriminated against in the form of sexual harassment of the most offensive and flagrant nature”.

The complainant was awarded €40,000. 


Why is this case of interest?