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EMPLOYER PENALISED FOR HAVING NO PRACTICABLE MEASURES TO PREVENT SEXUAL HARASSMENT

Facts: The Appellant was employed by the Respondent to teach a combined class of 100 students of which 85 were male. On 10th October the Appellant notified the Respondent that she was sexually harassed. The course leaders investigated and confirmed that sexual harassment occurred but they were not asked to investigate further or monitor the situation. On 24th October the Appellant was sexually harassed again with inappropriate sexual references and comments about how the male students ‘would do her’. The Appellant identified one of the male students to the Head of Department although she could not identify him as the perpetrator. While the student was sent to Disciplinary Committee, the harassment continued. Based on the complaint of the Appellant dated 9th November about the continuance of the harassment, the Respondent split the class and introduced training on Dignity at Work. On 19th March 2015, the Appellant was harassed again by a group of students in regard to the training. The Chair of the Disciplinary Committee failed to respond adequately to the Appellant’s complaint due to inadequate secretarial support. The registered complaint was referred to as misbehaviour in class rather than sexual harassment or harassment in general, with no outcome.

When the Appellant filed a grievance in January 2015 regarding the Respondent’s response to her previous complaint of sexual harassment, the Respondent agreed that its Equality Officer would provide training to the said students, however, the Respondent failed to brief the Equality Officer that the person who was sexually harassed was a member of Staff. The Appellant also argued that the Respondent also failed to (a) circulate Dignity at Workplace policy widely and (b) take adequate steps to ensure that such incident did not occur. The Respondent argued that the complaint made by the Appellant was time barred by reference to the time limits for making a complaint under S.83 (1) of the Employment Equality Act 1998-2015 (Act) and further submitted that practicable steps were in place to avoid such occurrences and to address the complaint. It also submitted that the student group was cautioned about such behaviour not being tolerated.

Findings: In relation to the first submission of the Respondent that the complaint was out of time limit, the Labour Court found, relying on Cork County VEC v Hurley (EDA24/2011) that the March 2015 incident about Dignity at work training was to be considered as the last occurrence of harassment and that the complaint was within the time of limitation. Additionally, it also held that such behaviour of the students, although not specifically categorized as sexual harassment was to be treated as harassment on the ‘gender’ ground under the Act. With respect to the second submission of the Respondent that it had taken all measure to prevent sexual harassment, the Labour Court found that Sec.14 of the Act specifies that the employer must put in place practicable measures to ensure that such incidents do not occur in addition to having appropriate policies in place.  The Labour Court pointed that the Respondent did not have any practicable procedures to deter such behaviour. The Respondent could not provide evidence that the training addressed the sexual harassment issues.

The Labour Court held the Respondent liable for sexual harassment suffered by the Appellant and ordered €10,000 for distress and the effects of sexual harassment and harassment based on her gender.

Note to employers: In order to avoid being in the similar situation, Employers should ensure that they not only have written policies in place but also have practicable measures to ensure awareness and compliance with the policies. Written records should be kept of such measures being applied in case of a complaint regarding sexual harassment or harassment based on ‘gender’ grounds, including records in relation to any training.

https://www.workplacerelations.ie/en/cases/2019/september/eda1931.html

13th September 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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