The Workplace Relations Commission (WRC) has upheld a claim for sexual harassment and ordered a beauty salon to pay €25,000 in compensation to its former employee. The full decision can be found here (reference: ADJ-00025776).
The complainant was employed in a beauty salon. A staff event was organised to watch a match in the local pub. On the night, the complainant described three incidents where the owner of the salon (Mr B) touched her breasts. The complainant asked Mr B to stop to which he replied, 'I am going to fire you'. The complainant later sought an opportunity to speak informally to Mr B about the incidents. She claimed that Mr B's response was "I'll have to find another victim". The complainant also recalled two incidents where Mr B caught her by the sides and brushed passed her in the workplace. On the second of these occasions the complainant was so upset that she went home immediately.
Mr B denied that he had sexually assaulted her at the staff event and claimed that the complainant was lying. Mr B asserted that the complainant had gone home as she was upset due to an administrative error that she had made earlier in the day by inputting numbers in the till incorrectly. Mr B accepted that he had touched the complainant lightly on her hips and had not said "excuse me" or made any verbal request. He claimed that he was not familiar with the details of the salon's Dignity and Respect at Work Policy which was nailed to a noticeboard in the rest room. Employees were not provided with a copy of the policy. It later transpired that Mr B had drafted this policy himself.
A meeting was conducted between the complainant, Mr B and Mrs B (who was in charge of various managerial and administrative tasks at the salon). The complainant was subsequently invited to meet with an independent qualified mediator / HR consultant. The complainant did not attend this meeting.
The events involving Mr B resulted in a decline in the complainant's mental health.
The Adjudication Officer (AO) held that the complainant was sexually assaulted, relying on the subjective definition of sexual assault in the Employment Equality Acts 1998-2015. The conduct can be verbal, non-verbal or physical of a sexual nature and must be "unwanted" and must have "the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". The definition does not take into account whether or not the conduct was intended to have that effect.
Mr B submitted that the staff event did not fall within the course of "workplace" or "work related social event". The AO followed the decision of Maguire v North Eastern Health Board in deciding that the complainant would not have been at the social event in question had they not been employed by the respondent and on that basis the event fell within the definition of "work related social event" for the purpose of the Code of Practice (Harassment) Order 2012 (Code of Practice on Harassment).
The AO held that the attitude of Mr B when confronted by the complainant was "blasé" and the fact that he did not attempt to initiate an investigation under the Dignity and Respect at Work Policy which he himself drafted was a further aggravating factor. In addition, the AO considered Mr B's allegation that the complainant was upset and went home due to her own administrative error at work was a "contrivance to veil the true reason for the complainant's upset.”
The AO concluded that the complainant was sexually harassed and that this constituted gender discrimination by Mr B under section 82 of the Employment Equality Acts 1988-2015. The AO ordered an award of compensation of €25,000, none of which was in respect of remuneration.
Key takeaways for employers
1. Policies and Procedures
The Code of Practice on Harassment provides that employers should adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment. The policy should be written in plain language and devised in consultation with employees and trade unions where applicable. The policy should clearly define what constitutes sexual harassment and harassment; identify, who is responsible for implementing the policy and detail how complaints will be addressed. The policy should state that it is up to the employee to decide what he/she considers as unwelcome, irrespective of the attitude of others to the matter. The policy should be communicated effectively to all employees and to those who may be affected by it (e.g. customers and clients).
This case illustrates that employers must take all allegations of sexual harassment in the workplace seriously. Employers should ensure they have appropriate internal processes in place to properly address and resolve complaints in an appropriate manner. The WRC will not look favourably on an employer with a "blasé" attitude to any such allegations.
Appropriate and regular training for all staff and management who will be required to address and resolve such complaints is essential. Employers should provide training to all employees at all levels on the details of the company's policies. This training should be provided at induction; where the policy is updated, and through appropriate awareness-raising initiatives.
Contributed by Aimee Carroll & Therese Chambers
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