Employee's claim of harassment not upheld where the employer took steps to prevent reoccurrence of harassment ⚓︎

The recent case of Victor Kings Oluebube v CPL Solutions Limited t/a Flexsource Recruitment ADJ-00024254, looked at the issue of harassment and a defence to harassment pursuant to Section 14(2) of the Employment Equality Acts 1998-2015.

Background ⚓︎

The Claimant, a Nigerian national, commenced employment as a warehouse operative with the Respondent, a recruitment agency on the 14th January 2019. He was assigned work with one of the Respondent's clients. He claimed he was racially abused and discriminated against on the grounds of his race.

Harassment ⚓︎

The Claimant alleged that he was harassed by the warehouse team leader who imitated monkey sounds in front of him and his colleagues. He also alleged the team leader made extremely inappropriate comments about his appearance and said "you look like a chimpanzee". Thirty minutes after the incident, the team leader apologised to the Claimant and said that "he did not mean to be racist". He asked the Claimant to "let it rest here" and commented that he "had black friends".

The Claimant reported the incidents to the warehouse manager who asked him what he wanted to do about it. The warehouse manager brought the Claimant to his manager in the Respondent agency, who undertook an investigation into the incident. The Claimant made a statement and he was subsequently informed that disciplinary action had been taken but was not told of the particular outcome.

The Claimant took issue with how the investigation process was handled by the Respondent. He claimed he was not informed of the time frame for dealing with the complaint and that he was not given an opportunity to respond to the comments made by the team leader during the course of the investigation. He also argued that no follow-on support or counselling was provided to him. The Claimant argued the process did not comply with the rules of fair procedures and natural justice, nor did it comply with the Employment Equality Act 1998 (Code of Practice) Order 2012.

Respondent's Position ⚓︎

The Respondent denied that the Claimant was discriminated against and sought to rely on section 14(A)(2) of the Employment Equality Acts. The Respondent stated that it encouraged the Claimant to make a formal complaint; that the manager had met with the perpetrator; he advised that he had apologised and did so again, profusely. The Respondent stated that it acted promptly and investigated the matter. The perpetrator was given a final written warning, which was one step short of dismissal. Training was also provided to the perpetrator in addition to the final warning. The Respondent also claimed that it had robust policies in place protecting an employee's right to work in an atmosphere free from harassment and discrimination.

The Law ⚓︎

Section 14A (7) (a) of Employment Equality Acts define harassment as

            “(i) references to harassment are to any form of unwanted conduct related to any of         the discriminatory grounds, and

            (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal         or physical conduct of a sexual nature,

            being conduct which in either case 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 Adjudication Officer (AO) found that the statements made by the warehouse team leader to the Claimant were indicative of a reprehensible mindset and undoubtedly constituted harassment on the grounds of race. She found that the comment could not be other than degrading, hostile and humiliating.

The AO then went on to consider section 14A (2) of the Employment Equality Acts which offers a defence to an employer where it can prove that it:

            "took such steps as are reasonably practicable -

            (a) ……..to prevent the person from harassing or sexually harassing the victim or any       class of persons which includes the victim, and

            (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated       differently in the workplace or otherwise in the course of the victim’ s employment and,          if and so far as any such treatment has occurred, to reverse its effects.”

The Claimant argued that the Respondent could not rely on this defence because the procedure invoked was wanting in terms of natural justice. However, the AO found that it was accepted that the Claimant had made a statement as part of the investigation, which was not contested and that the statement was the total of the Claimant's complaint. The AO found that the absence of the Claimant's further involvement in the investigation did not compromise a finding in his favour or the outcome. The Respondent found in his favour and the Claimant was advised that a sanction had been applied.

The AO went on to find that the steps taken by the Respondent to prevent a recurrence included an apology from the author of the statement, the Respondent's encouragement of the Claimant to proceed with a formal complaint, the Respondent's investigation of the complaint, their apology for the statement and the application of a sanction just short of dismissal to the perpetrator and the requirement for the perpetrator to undertake training.

The AO concluded that the Respondent was entitled to avail of the defence provided for in section 14(A) (2) of the Employment Equality Acts as she found that the Respondent took steps to reverse the effect of the harassment and to prevent a reoccurrence. The Claimant's claim failed.

Takeaway points from this decision ⚓︎

It is not possible for employers to control the statements or comments that might be made by individual employees in the workplace, from time to time. However, the action an employer takes in response to an allegation of harassment or discriminatory behaviour is crucial.

Where an employer responds appropriately and adequately, they may be in a position to rely on the defence provided for in section 14(A)(2) of the Employment Equality Acts. To avail of this defence, it is important the employer has a robust policy in place to deal with allegations of harassment and sexual harassment and that policy should be applied fairly and consistently. Where an allegation of harassment or sexual harassment is substantiated, the employer should take action and impose an appropriate sanction.

It is also strongly recommended that training is provided to employees in relation to harassment and sexual harassment.