12/05/2020 Article

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Mr A repeatedly made other derogatory comments with regard to his sexual orientation. The claimant claimed that he suffered discrimination, harassment and victimisation in his workplace as a result of his sexual orientation.

The employer attended the WRC hearing but could not provide a defence to the claims against it, as the office where the claimant worked had since closed down.

Timing Issue

Under the Employment Equality Acts a claimant cannot bring a claim for redress after a period of six months has elapsed from the most recent occurrence of the discrimination or victimisation. By the claimant’s own submission, the last occurrence of discrimination was 27 March 2018. The complaint was received by the WRC on 7 October 2018 (six months and ten days after the last occurrence of discriminatory abuse).

The claimant submitted, however, that because during the six-month period prior to the making of the complaint he was being continuously ignored and isolated by Ms B (to whom he had reported the incidents), and as no further action was taken internally in that time to investigate his claims of discrimination, there was a continuation of sexual orientation discrimination. Accordingly, the WRC accepted that the six-month time limit was complied with and the previous events could be considered as part of the complaint.

Harassment Complaint

In order to bring a claim of harassment the conduct complained of must be connected to one of the nine grounds of discrimination under the Employment Equality Acts, in this case sexual orientation.

The claimant claimed that Mr A and others explicitly ridiculed his sexual orientation. This evidence was corroborated by a colleague, Ms X, who gave evidence on the claimant’s behalf as part of Ms B’s internal investigation into the conduct complained of. However, Ms B accused both the claimant and Ms X of lying to her and “wasting her time”. The WRC regarded this internal investigation as “disastrous”, completely failing to remedy the situation. It was accepted by the WRC that, as a result of the outcome of this internal investigation, Mr A was allowed to enjoy an even stronger position of power over the claimant.

The WRC considered the claimant’s evidence to be very credible.  It accepted that he was harassed by reason of his sexual orientation and that it could not be said that the employer took steps that were reasonably practicable to prevent harassment in the workplace or steps to reverse any harassment that was occurring. The employer was accordingly held liable for the harassment suffered by the complainant.

Discriminatory Treatment Complaint

The claimant claimed that he was harshly treated when he raised issues regarding the IT system at work. It was accepted that, at the time, all workers were having issues with the IT system and were being asked to log any of the issues that they had. It was alleged that the claimant was “taken to task” any time that he logged IT issues. The claimant claimed that his working time was reduced to two days per week when no other employee had their hours reduced. The claimant believed that the conduct complained of occurred as a direct consequence of his sexual orientation and/or because he challenged Mr A, a heterosexual married man with children.

The employer did not dispute the evidence presented. The WRC found that the claimant was singled out, as he alone was selected for a reduction in his hours. It was accepted that this reduction in hours and the treatment regarding IT issues could be associated with his sexual orientation and constituted discrimination on those grounds.

Victimisation Complaint

The three components of victimisation were set out by the Labour Court in Barrett -v- Department of Defence EDA 1017:

  • the claimant must have taken action of a type referred to in the Acts – for example, making a complaint of discrimination to the employer;
  • the claimant must be subjected to adverse treatment by his/her employer; and
  • the adverse treatment must be in reaction to the protected act having been taken by the claimant.

The WRC in this case decided that victimisation had not occurred. It was decided that because the incidents complained of predated the complaint made to the WRC on 7 October 2018, they could not have been in reaction to this complaint.

Award of Compensation

The WRC concluded that the mistreatment the claimant suffered “without doubt created an intense, hostile, humiliating and offensive environment for him in the workplace. It had a great burden on his physical and mental health where he was hospitalised.”

The employer was not able to rebut the prima facie case that the claimant had made and the claimant was awarded €27,000 for the sustained distress suffered by him and for both the effects of the discrimination and the harassment on him and his health. The award represented approximately 18 months gross pay for the claimant.

Assessment

This case illustrates that even where specific, identifiable ill treatment has not recently occurred, the WRC is willing to accept an argument regarding the “continuing state of affairs”. Despite the last instance of ill treatment being over six months before the complaint, the WRC accepted that the same state of affairs was continuing up until the claimant’s departure from employment by virtue of the employer’s ongoing failure to deal with it appropriately.

It is important for an employer in defending claims of this kind, to be able to demonstrate that it has in place effective measures to prevent harassment in the workplace and that it took steps to reverse any harassment that does occur.

[1] A Scheduler v An Installation Provider ADJ-00017335 (AO: James Kelly)

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