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Part-time Employee awarded €3,500 in sexual harassment case due to damning text messages

Facts:

The Complainant, who was in her final year of secondary school, took up employment with the Respondent as a kitchen porter in a restaurant. No documentation was drawn up and the Complainant was paid cash in hand. The Complainant submitted that she was constructively dismissed due to the inappropriate behaviour of the Respondent. Examples of this behaviour included; the Respondent’s inappropriate touching of the Complainants legs and body, rubbing the complainants body and making sexual movements, referral to the complainant as his girlfriend, inappropriate text messages and a violent incident in which the Complainant was locked in a room by the Respondent where he was pushed her against the wall and tried to kiss her.

The Adjudicator, in quoting section 14 of the Employment Equality Act 1998, and the case of Aer Lingus Ltd. v McConnell, established that the test in proving discrimination: 

  1. The complainant must prove the primary facts upon which she relies in advancing her claim of discrimination
  2. The facts must be of sufficient significance to raise a presumption of unlawful discrimination

If this two-limb test is satisfied, then the onus of proof shifts to the Respondent to prove, as a matter of probability, that the Complainant was not subjected to unlawful discrimination. The Adjudicator placed a lot of emphasis on the inappropriate text messages sent by the Respondent to the Complainant. The Adjudicator found that the texts cast a doubt on the Respondent’s assertions that nothing inappropriate had occurred between the parties. Thus, the Complainant satisfied the two-limb test, and a prima facie test established. The Adjudicator found that the Respondent did not rebut the prima facie case. This compounded with the absence of written policies dealing with Dignity at Work and Discrimination led the Adjudicator to decide that on the balance of probabilities the Complainant did experience sexual harassment to which the Respondent was responsible.

Held:

It was held under the Employment Equality Acts that the Complainant suffered sexual harassment and discrimination on the grounds of gender and age, and she was discriminatorily dismissed. The Respondent was ordered to pay €3,500 to the Complainant. The Complainant was also awarded €245 euro under the Terms of Employment Act 1994, 86.50 under the minimum notice and Terms of Employment Act 1973, and €180 under the Organisation of Working Time Act. The Adjudicator also notes that the respondent had no policies and procedures in place dealing with grievances and Dignity in the workplace, thus leaving the complainant with no avenue other than that of constructive dismissal. This must be rectified immediately with the establishment of adequate policies to deal with such matters.

https://www.workplacerelations.ie/en/cases/2019/july/adj-00014898.html

1st August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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