In the case of A Creche Worker v A Creche, ADJ-00032972) the employee (Complainant) outlined that she was gay and that she was outed unwillingly by a work colleague’s inappropriate questioning around her sexual orientation. She further submitted that she was harassed and that proper steps were not taken by her employer (the respondent) to deal with it. The Complainant further claimed that she was victimised for making the complaint to management when she was subsequently moved to a different room in the workplace, and her hours were reduced.
Her employer denied each of the claims. On harassment, it submitted that when a complaint of harassment was made by the Complainant an immediate investigation was pursued by the Respondent, but the Complainant did not want the matter to progress further. Regarding the complaint of victimisation, the Respondent stated that any change in the working arrangements of the Complainant were purely down to the needs of the business during the challenging period of the Covid-19 pandemic and were not related to any alleged harassment complaint made by the Complainant. The Respondent further stated that the Complainant was employed as a relief worker and that her hours were never reduced below her contractual hours.
Workplace Relations Commission
The WRC considered all of the arguments in respect of harassment and victimisation as well as the caselaw surrounding it. The Adjudicator observed:
“I accept that the Respondent had in place a policy directed against harassment which was contained in the employee handbook and accessible in folders for staff members to read. However, I conclude that the policy was not properly or adequately applied in practice. In these circumstances I am satisfied that the Respondent did not take such steps as were reasonably practicable to prevent Ms A from harassing the Complainant on the basis of her sexual orientation and therefore cannot rely on the defence provided by section 14A(2)(a) of the Acts. For the reasons set out above, I am satisfied that the Complainant was harassed, and that the harassment constituted discrimination against her by the Respondent in terms of her conditions of employment on grounds of sexual orientation”.
The Adjudicator stated that he accepted that there was no intention or otherwise to hurt the Complainant employee by asking the questions posed however he noted that the Respondent failed to adequately protect the Complainant.
An award of €5,000 was given in respect of compensaiton for the discrimination suffered
The Adjudicator however found that the Complainant employee was not victimised. In essence it was found that the Complainant was a relief worker and never complained about being moved between locations. Her employer also stated that she was always consulted with before any move and that in a recent appraisal, the Complaint expressed happiness at the level of flexibility she had. It was also found that there had been a drop off in business during the Covid pandemic but that that the Complainant was never allocated less hours than her contractual hours. Having regard to all the evidence adduced in relation to the Complainant’s complaint of victimisation, I am satisfied that there is no basis upon which the movement of the Complainant as a relief worker between locations and any purported reduction in hours could be construed as linked to the making of the complaint of harassment. I decide therefore that the Complainant has not established a prima facie case of victimisation.
Case Learning Tip
Employers should always ensure that any policies and procedures are brought to the attention of employees. There is little point in having policies and procedures in place if employees are not aware of them. It is always good practice to provide training to employees and ensure they are fully aware of the policies and confirm their attendance in writing. This can be a good defence to employment claims brought by employees.
