Dermot Casserly, Partner, and Leah Traynor, Trainee Solicitor, DWF (Ireland) LLP discuss a recent sexual harassment case, A Waitress v A Café ADJ-00035326, in which the complainant left her position after four weeks due to an offensive and humiliating remark by her supervisor.

The complainant started working as a waitress in the respondent’s restaurant on August 1st, 2021.  She generally worked for 16 hours a week, and she was paid an hourly rate of €10.50.  She left her job about four weeks later as a result of what she claims was an offensive and humiliating remark that the respondent made which caused her to be to upset to continue in her job.

Complainant's Case

In advance of the hearing, the complainant submitted a written statement in which she explained what happened shortly after she arrived at work on September 3rd, 2021.  She said that she wasn’t wearing the right shoes for work, and she explained to the respondent that there was a hole in the shoes that she had intended to wear.  She said that the respondent kept shaking his head saying, “no.”  She said that he lifted her jacket and told her that she wasn’t to wear leggings either because they “make your ass too sexy.”  In her submission, the complainant said that the respondent asked a kitchen assistant what he thought but the kitchen assistant just shrugged his shoulders.

The complainant said that she was in complete shock, and she went to put away her bag and coat and went out to the floor of the restaurant.  As she was getting water for a table, she said that she started to cry, and she went to the bathroom where she said she had a panic attack.  When she came out of the bathroom, she said that the respondent asked her what was wrong, and she told him that what he had said to her wasn’t right and that it had made her feel uncomfortable.  The complainant’s submission notes that the respondent told her to calm down and not to over-react.  She said that she told him that she was a minor and that he couldn’t say such things to her.  She decided to go home.  She got her bag and coat and, as she got to the door, she said that the respondent stood in the doorway and tried to give her a hug.  She said that she told him that she was going home and that he said that she couldn’t go home.  She said that she kept saying that she couldn’t stay at work and repeating that she is a minor.  She said that she asked to look at the CCTV footage of what had occurred, but that the respondent refused.

When she got to the door, the complainant said that a waitress she was working with came over and asked her what happened.  She said that the waitress comforted her when she told her what the respondent had said.

When she was at the door, the respondent called the complainant back and she said that she went back in “to see if he was going to realise he was wrong…”  She said that he didn’t admit to being wrong but said that she should be grateful that she had a job and that, if she left, she wasn’t to come back.  The complainant said that she replied, “good, I’m not coming back.”

When she got home, the complainant said that she was still having a panic attack and her father rang the Gardaí.  A Garda came to her house and took a statement from her.  A few days later, she was still having panic attacks and she was prescribed anti-anxiety medication.

At the hearing, the complainant produced her phone and showed me a text message that she received from the waitress that evening.  This employee said that “he thought it was okay” and that she would tell him that he couldn’t make such comments and that he wouldn’t do it again.  She asked the complainant to come back to work.

In response to the respondent’s evidence, the complainant said that she always wore the right clothes to work, a black top and leggings.  She said that all the other waitresses wore leggings.

Respondent's Case

In his evidence at the hearing, the respondent said that he remembers the evening of Friday, September 3rd, 2021.  He said that the complainant arrived for work just before 6.00pm and a kitchen assistant was in the kitchen.  He said that the complainant was dressed inappropriately for work and that he had spoken to her previously about the dress code.  The respondent said that he wasn’t happy with how she was dressed, saying that she looked like she was coming from the gym, and he said that he told her that she “couldn’t work like that.”  The respondent said that the complainant went away, and then she said that she was leaving.

The respondent said that he employs many young girls, some aged 16 and he has been in the restaurant industry for 20 years.  He employs eight people in the restaurant he has had for the last 10 years and he has never had a complaint made about him.

Relevant Law

Sexual Harassment

This relevant legislation for adjudication of this complaint is section 14A of the Employment Equality Act 1998 (“the 1998 Act”), a new section inserted by the Equality Act 2004, specifically addressing the issue of harassment and sexual harassment at work.  Harassment is defined at defined at sub-section (7)(a)(i) and sexual harassment is specifically defined at sub-section (7)(a)(ii):

(a) In this section—

(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.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The conduct that the complainant claims resulted in her leaving her job falls within this definition, as it was an unwanted remark that was a violation of her dignity and which made her work environment intimidating and humiliating.

Discrimination

At section 14A(1) of the 1998 Act, harassment and sexual harassment are categorised as discriminatory conduct.  While harassment may discriminate against a person on one of the discriminatory grounds of age, disability, sexual orientation, race, membership of the traveller community, family status, civil status or religion, sexual harassment is discrimination against an individual on the single ground of gender.

Establishing that discrimination has occurred

The Equality Act 2004 inserts a new section, 85A, into the 1998 Act.

85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred.  For the complainant to succeed in her complaint, the first hurdle she must overcome is to provide evidence that will lead me to assume that, based on the primary facts, as a female, she was treated in a manner that was intimidating, humiliating, offensive, hostile or degrading.

There is a conflict regarding the details of what the respondent said when he remonstrated with the complainant about what she wore at work on the evening of September 3rd, 2021.  The Adjudication Officer found the complainant’s evidence credible when, she said that as she explained to the respondent that she was wearing the wrong shoes, he made the remark that her leggings were also wrong, saying, “your ass is too sexy,” or “your ass is too nice.”  Her description of the conversation afterwards when she was clearly upset, when she said the respondent asked her to calm down and to stop over-reacting, was also credible.  The text message that she received from her colleague that evening adds credence to the complainant’s version of events.  Based on her evidence, the Adjudication Officer was satisfied that the remark was made by the respondent.  It was their view that, for any young girl in her first job, such a remark would be intimidating and humiliating.

Outcome

As a one-off remark, and as one that some might consider to be trivial, it is important to examine the wording of section 14A of the 1998 Act, and the focus on unwanted conduct and its effect.  A concise summary of the objective of the law in relation to harassment is in the decision of the Labour Court in Nail Zone Limited and a Worker[1]:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.”

It is apparent that the test for establishing if certain conduct constitutes sexual harassment is a subjective one, and not based on the response of another reasonable person.  It is clear to me from the complainant’s evidence that the conduct she complained about had the effect of violating her dignity and creating an intimidating and offensive environment for her at her place of work.  Considering these findings, and taking account of the Nail Zone decision, I am satisfied that the remark made by the respondent was sexual harassment and that the complainant has shown that she was discriminated against on the ground of gender.

It was decided that, in accordance with section 79 of the Employment Equality Act, this complaint was well founded, and the respondent was directed to pay the complainant compensation of €2,500, equivalent to approximately three months’ pay.

Key takeaways for Employers

1. Employers should note the essential characteristics of harassment within the statutory meaning is that the conduct is a) unwanted and; b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Effectively, the test is subjective in nature.
   
   
2. An employer should provide all staff with training in relation to employment equality legislation, in particular, in relation sexual harrassement and provide all staff at induction stage with the employer's policies on employment equality.