Retailer ordered to pay €15,000 in harassment case
Failure to translate investigation policy into practice proves costly
The Workplace Relations Commission (WRC) has ordered a retailer to award €15,000 to a sales assistant to compensate her for being harassed by a more senior colleague.
The employee submitted evidence that her immediate manager placed his hand on her chest, pulled up her top, patted her left breast and said ‘we will cover them up for this meeting’.
A witness corroborated the employee’s evidence. The employee’s claim set out that her manager’s conduct amounted to discrimination on the ground of gender, harassment and sexual harassment.
The employee submitted further evidence explaining that the incident had an immediate detrimental effect on her health and a doctor certified her as unfit for work.
Mishandling of investigation procedure
The employee filed a complaint with her employer the day after the incident. The retailer suspended the alleged perpetrator who immediately resigned following a meeting with an Area Manager.
At a subsequent meeting with the store manager, the employee raised her complaint when she grew concerned that the store manager did not intend to discuss the issue. The store manager said he would not address the issue and advised her to send the details of her complaint by email to the HR department.
Following receipt of the complaint, the Regional HR Officer contacted the employee to confirm that her complaint was being addressed but that ‘unfortunately I will not be in a position to discuss the outcome of the investigation’.
The employee heard nothing more and followed up two months later to query the status of her complaint which she noted had caused her serious distress. The HR Officer sought medical certificates for the employee’s absences from work and in relation to the investigation into the complaint stated that ‘we are unable to inform you of any outcome’.
The store at which the incident took place subsequently closed. The employer advised the employee that her complaint had been investigated, the manager involved in the incident had resigned and no further details about the investigation into the incident would be provided.
The Adjudication Officer (AO) found that he had seen sufficient evidence to establish a presumption of discrimination on the ground of gender. The burden of proof, therefore, switched to the employer to establish that the principle of equal treatment had not been infringed.
The AO found that in circumstances where the employer was well aware of the detrimental effects the incident had on the employee’s wellbeing, it was not sufficient to simply advise the employee that the perpetrator of the harassment was no longer employed in the business.
The AO ruled that the employee was entitled to have her complaint properly investigated, to know the outcome of the investigation and to receive confirmation as to whether her complaint was upheld or not.
The AO found that the retailer failed to address these matters and upheld the employee’s complaint of harassment and discrimination.
Defending allegations of harassment
If allegations of sexual harassment are made in your workplace, you should follow the procedures and timeframes set out in your anti-harassment policy.
If the allegation develops into a WRC claim, you will have the opportunity to defend the claim provided you can demonstrate that you took such steps as were reasonably practicable to prevent sexual harassment in the workplace including having a relevant policy in place and providing training where necessary.
Your defence will be more likely to succeed if you can show that you have taken steps to reverse the effects of the harassment by carrying out an appropriate investigation, disciplining the perpetrator (where appropriate) and offering the victim support such as counseling or access to an employee assistance programme.
This recent WRC decision highlights the importance of translating policies and procedures into practice. Having a policy in place will be no defence if you fail to adhere to the procedures within it.
Reduce your exposure to harassment claims
If you have any questions in relation to your duties to your employees, or would like to discuss training on this issue, please contact the advice line on +353 1 886 0350 to speak with one of our experts.
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