This decision awards the full amount possible to the complainant, two years salary with the addition of interest.  It should be noted that some of the evidence is presented for the first time in the Equality Officer’s conclusions.

The complainant began working with the respondent at age 17 and she asserted that two supervisors began making inappropriate comments of a sexual nature to her from shortly after she was employed.  Comments were also made to her mother who was also an employee.  The Decision documents the alleged comments and an incident that took place during a night out.  The complainant complained after the night out and while initially denying any liability the respondent eventually undertook an investigation.  The complaints were upheld in respect of the night out and the accused supervisor was subject to disciplinary action in respect of the upheld complaints.  The Equality Officer stated that the respondent’s actions in respect of the investigation cannot be faulted and that it was approached with professionalism and integrity.  The Equality Officer was critical of the employer’s failure to inform the complainant of the action taken against the accused supervisor and stated that she “did not really receive any substantive reassurances for her personal safety which is ultimately what the defense in S.14(2) is about: employers have to find an effective way to stop such illegal conduct, in a manner that is commensurate with the options at their disposal.  He goes on to say that the accused person could easily have been moved to another store.

On the basis of that the Equality Officer found that despite its extensive investigation it did not take reasonably practicable steps in the meaning of s. 14(2)(a) to prevent the complainant’s harassment from recurring.  The Act states that what is required is that the employer is to have something in place to prevent the harassment from occurring and the use of this provision in respect of potential recurrences is interesting.  In practical terms, however, it would have seemed appropriate to prevent the parties from interacting by moving the accused when the allegations were upheld if only to prevent any potential for victimisation.

The Equality Officer also found that the complainant had clearly indicated to the employer of her difficulties in working with the harasser and gave it ample opportunity to address her concerns in a manner that would have put her in a position to return to work but failed to do so. He was satisfied that the complainant was constructively dismissed but because the same facts (the retention of the accused person in the same store) established the case of sexual harassment they could not also be used in respect of constructive discriminatory dismissal.

The complainant was awarded two years salary, €29756 with interest in accordance with the Acts.

Why is this case of interest?