Background:

The Complainant was employed as a massagist for the Respondent from 22 June 2021 until 22 December 2021, when the Complainant was dismissed at the end of her probationary period. After the dismissal, the Complainant, who was unrepresented, filed a claim to the WRC alleging discrimination on the basis of race. In the initial hearing of the matter, the Adjudication Officer found that written statements of the Complainant also raised a complaint of sexual harassment, and therefore adjourned the hearing and advised the Respondent that this complaint would also be heard as part of his decision.

In a resumed hearing which addressed both the complaints of race- and gender-based discrimination, the Complainant and Respondent both referred to a number of incidents where the Complainant had been in conflict with clients. In one instance, the Complainant alleged that a client repeatedly exposed her chest to the Complainant, even after asking that she not do so. The Complainant said she had refused to continue with the massage after the fact, but that her line manager said HR “would deal with her” if she did not do her job.

Outcome:

The Adjudication Officer found that the Complainant’s conflict with the Respondent did not amount to discrimination on the basis of race but was rather due to the Complainant misunderstanding the role and believing the Respondent was providing a clinical massage service rather than a service for client relaxation. However, the Adjudication Officer also found that the instance of a client exposing herself to the Complainant, and the Respondent’s failure to take the Complainant’s concerns seriously, did amount to discrimination on the basis of gender. The Respondent did mitigate this failure through a full and appropriate response at a corporate level when this was raised, and the Complainant failed to avail of the grievance policies made available to her. Taking this into consideration, the Adjudication Officer ordered the Respondent to pay the Complainant €2,000. He also required the Respondent to create a sexual harassment policy and additional managerial training specifically for its spa service.

Practical Guidance for Employers:

WRCAdjudication Officershave the authority to consider statutory complaints which have been raised in a WRC complaint form, even if they are not formally indicated on that form. Employers should consider developing specialised policies and training on sexual harassment or other grounds for parts of its operations if those operations are particularly at risk for such incidents due to the nature of the work done.

The full case is here: https://www.workplacerelations.ie/en/cases/2023/august/adj-00036772.html