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Employee Awarded €27,500 for Victimisation by WRC Regardless of Losing Main Claims

Introduction: In the recent decision of Rene O’Reilly v Dublin City University, ADJ-00020428, Adjudication officer Marian Duffy awarded the Complainant €27,500 in compensation for victimisation despite getting no compensation for several other complaints before the WRC.

Facts: The Complainant was employed by the Respondent as a Foundation Programme Coordinator in the international office on 27th November 2017 on a 3-year fixed-term contract. The Complainant submitted that she was discriminated against, sexually harassed, victimised and dismissed on the basis of gender contrary to the Employment Equality Acts.

The Complainant claimed that she was victimised and that she was dismissed from her employment for making complaints. The Complainant submitted that she reported an incident of discriminatory treatment and harassment by IOD which took place on 27th September and after that he wrote inaccurate reports about her performance which led to her dismissal. The Complainant also submitted that two days after she made an informal complaint about sexual harassment on 22nd October she was dismissed. The Respondent submitted that the Complainant was not victimised or dismissed but that she failed to pass her probation due to performance issues.

The Complainant submitted that in relation to the probation meeting that took place on 24th September 2018 she was given no indication that she may not pass her probation period and she believed that she had a successful meeting. The IOD stated that the meeting was collegial and positive, and the Complainant had taken on board the feedback provided. He then drafted a probation assessment report and sent it to HR. The Adjudicator noted that the draft probation assessment did not contain any indication the Complainant had failed her probation or that it was necessary to give her any warnings however, the probationary document provided to the Complainant on 3rd October in respect of this meeting was more critical of her performance and statements about supports and activities in the future were omitted but it did indicate that she had not been given warnings for inadequacies. The first written warning that the Complainant received was 2 days after the Complainant complained about harassment and it was in that document that she was advised of a probation meeting on 24th October.

The Adjudicator did not accept that the IOD had changed the draft document following advice from HR to reflect deficiencies in the Complainant’s performance to warn her if she did not improve, she would fail her probation and that this should have been reflected in the draft document. The Adjudicator also took into consideration that the IOD had intended to give the probation report to the Complainant on 28th September and the only matter which occurred between then and the new probation report being drafted was that the Complainant had raised an issue under the Respondent’s Respect and Dignity Policy.

Decision: The Adjudicator stated that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld as long as the adverse treatment complaint of falls within the ambit of one of the protected acts. The Adjudicator was satisfied that given the sequence of events leading to the Complainant’s dismissal after the Complainant raised her first complaint of harassment and her subsequent complaint of sexual harassment, there were a number of instances from which adverse treatment can be inferred which raises a prime facia case. The Adjudicator was satisfied that the Complainant was victimised and therefore awarded the Complainant €27,500 in compensation.

It should be noted that the Complainant did establish a prima facie case of sexual harassment in relation to her conditions of employment however the statutory defense under section 14 A(2) of the Employment Equality Acts 1998 was applicable to the Respondent as they had a policy in place to prevent sexual harassment in the workplace.

Takeaway for the Employers: Employers should be aware that the protection against victimisation is not limited to situations in which a complaint of discrimination is well founded. It simply relies on there being adverse treatment following or due to a complaint made by an employee that falls within the protections under Employment Equality Acts.

Link  –  https://www.workplacerelations.ie/en/cases/2021/may/adj-00020428.html

Authors – Eva Lindsay and Anne O’Connell

1st June 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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