In An Employee v A Café (ADJ-00047296), the Workplace Relations Commission (“WRC”) made an award of €12,000 in compensation to the Complainant, a former café worker, following a complaint of sexual harassment arising from a work night out under the Employment Equality Acts 1998-2015 (the “Acts”).
Facts: In 2023, the Complainant was an employee of the Respondent café for 12 weeks. Shortly after she started, she attended a night out with other staff, which included the café manager, Mr X. The Complainant and Mr X left at the same and Mr X walked her home. The Complainant alleged that Mr X pushed her up against a wall and kissed her and she pushed him away.
The Complainant gave evidence that on her return to work after the incident, Mr X was hostile and critical of her work. She also gave evidence that she spoke about the incident with the Duty Manager, Ms A. The Complainant stated in her evidence that she also contacted the Area/Regional Manager, Ms B, a number of weeks later stating that there was an issue she wished to discuss. However, she was discouraged by another member of staff from meeting with Ms B. The Complainant stated that she suffered from stress due to the situation in work stating in her evidence that she felt Mr X was always criticising her and hovering over her following the incident. The Complainant subsequently resigned in June 2023.
It was Mr X’s evidence that he had tried to kiss the Complainant on the cheek as was customary where he was from, but that he accidently kissed her and immediately apologised. Mr X also stated that he had apologised again when they returned to work after the weekend and the Complainant accepted his apology and wished to move on. Mr X gave evidence that as the Complainant progressed through the different stations in the café, it became apparent that her performance was not up to the Respondent’s standards. Mr X stated that this was addressed with the Complainant, and she was given a chance to improve while another new employee was let go due to their poor performance.
During the hearing, Ms A, the Duty Manager, and Ms B, the Area/Regional Manager, and Mr D, the Assistant Manager, all gave evidence as to the performance issues with the Complainant.
It was submitted on behalf of the Respondent that the night out was not a workplace function and the staff member who suggested the drinks also gave evidence that she did not consider it to be a workplace function. The Respondent also submitted that the Complainant’s performance was not sufficient, and it became apparent when her role was expanded.
Decision: The Adjudicator, Mr David Murphy, determined that having heard all the evidence, on the balance of probabilities the incident had happened as alleged by the Complainant. The Adjudicator added that the fact the Complainant had discussed the incident with other colleagues and had contacted the Area/Regional Manager supported her version of events.
The Adjudicator concluded that Mr X’s conduct fell within the definition of sexual harassment under Section 14A(7)(a)(ii) of the Acts which states that:
“references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
The Adjudicator then considered whether the events of the night fell within the scope of the Respondent’s liability, i.e. whether the incident that occurred on the night out could be considered to have occurred “otherwise in the course of his or her employment” as provided for in section 14A(1)(a) of the Acts.
The Adjudicator was satisfied that that the night out fell within the scope of section 14A. This was on the basis that the night out was organised by an employee, attended exclusively by employees of the Respondent including the manager, and the Complainant would not have been in attendance had she not been an employee.
The Adjudicator acknowledged the argument of the Respondent’s legal representative that employers should not be put in a position of having to ban or discourage staff from socialising for fear of liability arising. However, the Adjudicator was satisfied that the defence in section 14A(2) of the Acts provides a “sufficiently broad defence” for employers that take reasonably practicable steps to prevent workplace harassment.
Section 14A(2) states that:
“if harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred to reverse its effects.”
The Complainant gave evidence that she told Ms A, the Duty Manager, about the incident and while Ms A was supportive, she did not suggest that the Complainant escalate matters, and she did not refer the Complainant to any policy on harassment. The Complainant also gave evidence that she had received a soft copy of the handbook six weeks after she started, but that it was not practical to read it fully on her phone and it had only been provided to her in English, which was not her first language.
The Complainant also gave evidence that she contacted the Area/Regional Manager, Ms B, as she felt that Mr X was penalising her in work following the incident. Ms B quickly responded to set up a call. However, on speaking with another member of staff about the incident the Complainant again contacted Ms B stating that everything was fine.
The Adjudicator referred to the evidence given at the hearing and noted that neither Ms A, Duty Manager, or Mr D, Assistant Manager, were aware of the polices on sexual harassment. Furthermore, Ms B, the Area/Regional Manager and Mr X, while aware of the policies, had done nothing to promote its knowledge among junior members of staff, and neither had given any evidence that they had received training in respect of the policies.
The Adjudicator found that in such circumstances, the defence was not available to the Respondent as the Respondent had not taken such steps as were reasonably practicable to prevent the sexual harassment from having taken place. Therefore, the Respondent was liable for the sexual harassment of the Complainant.
The Complainant also submitted a complaint in relation to her treatment after the incident on the night out. The Adjudicator noted that section 14A(1)(b) provides for a separate basis by which an employer may be found liable for harassment, where an employee is treated differently due to rejecting the harassment. The Complainant alleged that Mr X was overly critical and hostile towards her after the incident. However, Mr X, Ms A, Ms B and Mr D all gave evidence that as her training progressed, it became apparent that the Complainant’s work was not up to the required standard. It was also noted that another member of staff was also treated in the same way and was dismissed for poor performance, whereas the Complainant was provided with an opportunity to improve. The Adjudicator was satisfied that there was no penalisation of the Complainant in respect of her rejecting the harassment and that her resignation was not forced by the actions of Mr X.
In circumstances where the Complainant no longer worked for the Respondent and was not dismissed, the Adjudicator noted that the maximum amount that could be awarded to her on foot of her claim was €13,000. Having regard to all the circumstances, the Adjudicator awarded her €12,000.
Takeaway for Employers: This decision is an interesting case dealing with an employer’s potential liability for sexual harassment occurring on work nights out. Employers should ensure that they have in place robust policies dealing with harassment and that these are clearly communicated to their employees. It is also important to ensure that managers are properly trained in how to deal with complaints regarding all forms of workplace harassment.
Another interesting feature of this case was the Adjudicator’s decision to anonymise the decision. While there does not appear to have been any request for anonymisation and the Adjudicator notes that his decision to anonymise the decision “does not arise from a direct discussion on the issue of anonymisation”, the Adjudicator regarded anonymisation as appropriate following the Supreme Court judgment in An Bord Banistíochta, Gaelscoil Moshíológ and the Labour Court and Aoghahán Ó’Súird [2024] IESC 38. In concluding that anonymisation was appropriate, the Adjudicator referred to the position set out by the Chief Justice in that case at paragraph 75:
“It is important for any person adjudicating and whose decisions are published, to recognise that without anonymisation of parties, findings made on the balance of probabilities, and sometimes limited evidence, may often be treated as definitive judgments on individuals and will have a considerable half-life and the damage done to reputations can be spread very far, and persist for some time.”
It will be interesting to see if this approach is adopted in subsequent WRC decisions.
Link – https://www.workplacerelations.ie/en/cases/2025/january/adj-00047296.html
Authors – Ethna Dillon and Jenny Wakely
25th February 2025
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2.
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