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WRC Found Employer Liable for Racial and Sexual Harassment

Facts: Vanessa Rodrigues Linhan v Carechoice ADJ-00044371 concerned a complaint under the Employment Equality Acts 1998-2015 (“the Acts”) to the Workplace Relations Commission (“WRC”).  The Complainant was employed as a Health Care Assistant with the Respondent in a care home for a period of roughly five months.  Her complaint relates to three incidents of harassment the Complainant experienced while in the Respondent’s employment working the night shift. The incidents involved two patients, Patient A and Patient B.

The Complainant was racially harassed by Patient A on two occasions, where he intimidated her and shouted racial abuse. The Complainant gave evidence under affirmation that he was an aggressive patient who would often leave the home and return home drunk. This behavior was a serious issue for the night shift workers. The first incident occurred on 20th December 2022 and the Complainant described feeling terrified and vulnerable, as there were not many staff on the night shift. She felt the staffing levels at night were not safe – comprising of three health care assistants and two nurses for forty-six patients. Her experience was that the nurses would not assist the carers so they would usually be alone working with the residents. The Complainant emailed HR about this incident. However, another incident occurred a few days later, where Patient A shouted at her in the kitchen calling her “a stupid black woman” and told her “to go back to her country”.

Patient B sexually harassed the Complainant in an incident following the above incidents with Patient A. The Complainant was helping a resident in their room when Patient B came in and started touching himself sexually. He kept coming towards the Complainant, cornering her while touching himself. This left the Complainant really shaken. He only retreated when the Complainant grabbed a deodorant can. The Respondent suggested that the Complainant had not reported the issue with Patient B, and that they were unaware of it, however the Complainant’s evidence was that she notified this incident to the nurse on duty and on request had returned a written statement to the nurse’s station.

The Complainant emailed HR on 6th March 2023 to resign. The Director of Nursing (“DON”) met with the Complainant following her resignation, however the Complainant felt it was too late.

Decision: The Adjudicator, Mr David Murphy, outlined how harassment and sexual harassment are prohibited under the Acts. As per Section 14A they constitute discrimination by the victim’s employer in relation to the victim’s conditions of employment. Harassment is defined as conduct which 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 upheld the complaint and found the Complainant’s rights under employment equality legislation had been breached on at least three occasions. While he noted the WRC should be mindful of the working environment, “the fact that the Complainant is a healthcare worker in no way diminishes her rights.” The Complainant had been subject to serious racial and sexual harassment which made her fear for her safety.

Section 14 of the Acts provide for a defence by an employer where they can show they took reasonably practicable steps to prevent the harassment. While the Respondent has an induction training program, the Complainant gave evidence that harassment by patients was not addressed as part of this. The Adjudicator noted the Respondent had a bullying and harassment policy but found it too generic and was critical of the fact it failed to consider the specific risks involved in a healthcare setting. The Respondent submitted to the WRC that potential risks from patients were contained in their care plans. It was accepted that Patient A’s care plan referred to aggressive behaviour. Patient B’s care plan showed entries referring to sexual approaches to residents, nurses, and carers a year prior and provided advice on how to manage interventions. However, the Adjudicator found it unclear how visible these entries would have been to the Complainant a year later.

The Adjudicator noted evidence given by the DON and Assistant Director of Nursing (“ADON”) that they worked with Patient A to improve his behaviour following the Complainant’s complaint, but found they failed to demonstrate efforts to manage the risk he presented prior to the harassment. The ADON was clear in her evidence that nurses were supposed to actively support the carers. However, the Adjudicator found this did not contradict the Complainant’s evidence, it just confirmed this was what was supposed to happen. The ADON outlined that they would try to ensure only male staff cared for Patient B but did not explain how the risk was managed when male staff were unavailable. It was submitted by the Complainant that it was well known that Patient B behaved in a sexual manner and while there was reference to it in the care records, there was no process to ensure the information and advice cascaded down to carers on the night shift.

After considering all the above, the Adjudicator was not convinced the Respondent had taken reasonable practical steps to avoid the harassment and manage the risks faced by staff on the night shift, therefore the Respondent was found to be liable. It was noted the DON and ADON were professional people who tried to address the issue when they became aware of it. But the Adjudicator stated “when countering harassment the most important tier of management will be the victim’s immediate supervisor who is on hand to actually react to incidents and risks. More senior staff offering support after the fact is no substitute for this”.

The Adjudicator noted his responsibility to make an award which is “effective, proportionate and dissuasive” and directed the Respondent to pay €30,000 in compensation.

Takeaway for Employers: It is important to be aware that an employer can be found vicariously liable for the actions of others (those employed by them, or a client, customer or other business contact) under employment equality legislation when harassment occurs in the course of a person’s employment. This liability attaches whether or not it was done with the employer’s knowledge or approval. However, there is a defence available under the Acts where an employer can prove they took reasonably practicable steps to prevent the contravening act(s). It is vital all employers, at a minimum, have a bullying and harassment policy in place. This WRC decision demonstrates that this policy should not be generic but should instead be specific to the workplace setting and the associated risks contained within it. All employees should receive regular training on the policy. Line managers, in particular, should receive training on how to respond to incident reports. These steps will help an employer prevent and respond appropriately to harassment in the workplace and defend potential WRC claims. The Irish Human Rights and Equality Commission has published a Code of Practice on this topic, which is linked below.


WRC Decision

Code of Practice

Authors – Tara Kelly and Anne O’Connell

26th April 2024

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