The Complainant, worked for MBCC Foods (Ireland) Ltd., ‘the Respondent’ as a Barista in their Costa Coffee store in Belgard, Dublin. The Complainant raised a complaint against her manager with the Respondent and while there was some dispute between the parties about the nature of the original complaint, it was common case that a complaint of sexual harassment was included in a complaint made in January 2020; that the Complainant sought a formal investigation, and that she then resigned before the investigation was concluded.

A complaint was lodged by the Complainant with the Workplace Relations Commission, alleging discrimination on grounds of gender, discrimination in conditions of employment and sexual harassment. An Adjudication Officer, ‘AO’, upheld the complaint and, judging it to be in the less serious category of such complaints, awarded compensation of €3500. The Complainant appealed the level of the award to the Labour Court.

Background to Initial Case

The background to the initial case (A Catering Worker v A Catering Chain ADJ-00027049) adjudicated on involved allegations of sexual harassment related to inappropriate messages and images in a group chat by the Complainant’s line manager.

The Complainant was 19 years of age at the time. She was on minimum wage and worked 30 hours per week, on average. The actions of her manager amount to sexual discrimination and sexual harassment. An essential element of sexual harassment is that it is unwanted by the recipient. The obligations of an employer are preventative in nature, and it is not enough that an employer takes steps to prevent a recurrence. Even where an employer has a sexual harassment policy, it is obliged to ensure that it is understood properly by the management responsible for its implementation.

It was evident that the perpetrator in this case, the shop manager, had no understanding of sexual harassment. The first response of the employer to the complaint was to suggest that the Complainant be moved. At a meeting which took place on the 24th of January 2020, the Area Manager, offered to mediate between the parties, despite having no training, and to move the employee to another store or, alternatively to refer the matter for formal investigation. The Complainant chose the formal approach.

The Respondent accepted some responsibility for the actions of the manager. Since these incidents, the Respondent has engaged a company to provide up-to-date training for all managers on dignity and respect in the workplace. The Respondent also accepted that the manager’s behaviour was inappropriate. The Respondent dealt with it accordingly.

The Complainant did not raise complaints at the earliest opportunity and when she did, she never referenced specifically that she felt sexually harassed. There were immediate and adequate responses from the Respondent, even though the Complainant did not engage with the process that she had sought. It appears that the Complainant thought it would be more beneficial to lodge a complaint under the Acts.

As the Respondent accepted that the actions that gave rise to the complaints amount to sexual harassment, it was not necessary to dwell overmuch on this aspect of the case. The acceptance of this by the Respondent obviates the need for the Court to examine if a ‘prima facie’ case exists such that the burden of proof should shift to the Respondent. The burden shifts because of the acknowledgement by the Respondent.

Level of Award

The Complainant for her part argues that she was subjected to sexual harassment at the upper end of the scale, that her employer had an obligation to protect her, that her employer failed to take the steps necessary to do so, that, as a consequence, she suffered distress and that her employer mishandled her complaint and compounded their failures by suggesting that she might move to a different outlet. The Complainant argued that the Adjudication Officer Decision falls short in recognising the seriousness of the complaint and that the award is not ‘dissuasive’.

The first issue for the Court was to consider if the Respondent had taken sufficient steps to protect the Complainant from the sexual harassment that she suffered. In this regard, the Court is quite shocked to note that an employer of this magnitude had, at the relevant time, no clear set out policy on sexual harassment. The fact that the platform used for the sexual harassment of the Complainant was a Facebook Messenger platform used for the Respondent’s operational purposes and whose existence was known to the Respondent, would suggest an imperative on the part of the Respondent to have in place a clear policy on social media use. In effect, that platform became, because of the nature of its use, the responsibility of the Respondent.

The Court noted that it was not easy to measure the level of seriousness of a complaint of sexual harassment. What can be said in the instant case is that the Complainant has a right to go to work without being subjected to unwanted pictures of her manager in his underwear or childish and offensive representations of male genitalia. While the nature of such offensive behaviour may not be in the same category as physical assault, it is considerably more than harmless banter and the Court did not concur with the view of the Adjudication Officer that the acts fall into the lowest category of misbehaviour.

The Court could not ignore the fact that the Respondent’s failures offered inadequate protections to the Complainant. The Court noted with approval that the Respondent had taken some steps to address its deficiencies in this regard, subsequent to the incidents that gave rise to the complaints. It hardly needs to be said that the Respondent needs to have a full suite of policies regarding the legal protections that they are required to put in place to ensure that staff are protected from recurrences of this type of incident. Therefore, the Court ordered the Respondent to take the following courses of action:

1. Develop a workplace anti-harassment and sexual harassment policy that complies with the relevant statutory Code of Practice;
2. Develop a workplace anti-bullying policy that complies with the relevant statutory Code of Practice;
3. Develop an appropriate Social Media policy;
4. Take the necessary steps to ensure, using awareness raising and training as considered appropriate and necessary, that the policies are verifiably communicated to, and understood by, all employees

In assessing the compensation to be awarded to the Complainant, the court concluded that the award should be effective, proportionate and dissuasive and that they should act as a disincentive against future infractions by the employer.

Accordingly, the Court was of the view that compensation of €20,000, or approximately one year’s earnings, was appropriate in this case.
https://www.workplacerelations.ie/en/cases/2021/september/eda2128.html