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In Waterford Institute of Technology and Louise Walsh Determination EDA1931, the Labour Court was asked to consider whether the complainant (employee) in this case had been subjected to a number of incidents of sexual harassment and harassment based on her gender (female). These alleged incidents were alleged to have taken place from 10th October 2014 to 19th March 2015 by students attending the complainant’s lectures.

The complainant stated that in September 2014 she was assigned to teach a class of approximately 100 students of whom approximately 85 were male.

On 10th October 2014 the complainant told the Respondent (the College) that she had been sexually harassed by a large group of male students in her assigned class. She said that she had been asked explicitly, coarse sexual questions and, in addition, various disgusting and explicit comments were made about male genitalia. She said she could not identify the male students involved.

On 15th October it was confirmed by the course leaders at the college that the sexual harassment had occurred. The course leaders were however not asked to investigate the claims further or to monitor the situation.

On 24th October 2014 the complainant again said she was sexually harassed and students had referenced inappropriate sexual references and sexual language including coarse words referring to parts of a woman’s body; references to sexual acts and comments about how the male students ‘would do her’. One student was identified and the Head of Department spoke to him but the complainant stated that the harassment continued.

The complainant subsequently submitted a grievance or complaint in respect of how the College had handled her complaints of harassment and sexual harassment in January 2015.

Whilst the college acknowledged that harassment and sexual harassment had taken place, it stated that it took all practicable steps to avoid the sexual harassment or harassment based on gender occurring and had taken all practicable steps to respond to the complainant’s complaints of such harassment.

Sexual Harassment and Harassment

The Labour Court considered Section 14A of the Employment Equality Acts 1998 (as amended) in respect of sexual harassment. This section provides that an employer can be held liable for harassment subject to the defences provided in Section 14(A)(2) of the Equality Acts. This defence arises where the employer can satisfy the court that it took such steps as were reasonably practicable to prevent the sexual harassment of the complainant or anyone else.

The Labour Court noted that both parties agreed that the behaviour complained of was inappropriate and of a sexual nature which affected the complainant’s dignity at work and constituted sexual harassment. The parties however disagreed as to whether the behaviour complained of in March 2015 could constitute harassment.

The Court looked at Determination EDA0915,A Hotel and a Worker: – This case provided:

“The obligation is preventative in nature and it is not sufficient for an employer to show that measures were taken to prevent a reoccurrence of harassment after it had taken place.This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.”

In essence the employer must show that the required policies were in place before the harassment arose and that all employees were aware of it. It also noted that management should be trained to deal with all such incidents.

The Labour Court therefore had to consider whether or not Waterford Institute of Technology took such steps as were reasonably practicable to prevent their students from harassing or sexually harassing the complainant as well as considering whether they took such steps as were reasonably practicable to prevent a recurrence of the harassment.

The Court also referred to the case of Pearse Brannigan v County Louth VEC [EDA193].

The Court noted that the College did have a Dignity and Respect policy in place at the relevant time which made it clear that sexual harassment was unacceptable. The College stated that the policy was available on its website but it was noted that it was very difficult to locate it online and no steps were taken by the College to highlight the policy or its contents to their students. The Court also noted that no evidence was put forward by the College which would demonstrate any active promotion of the policy or of any strategy or practice in place which was designed to bring the policy and its contents to the attention of students of the Respondent.

The Court found it had no basis for finding that the Dignity and Respect policy of the Respondent was effectively communicated to all students. It therefore found that the College did not take such steps as were reasonably practicable to prevent sexual harassment and harassment based on gender occurring in the workplace.

The Court also noted that the College stated that the Student Disciplinary Committee dealt with complaints of sexual harassment but it could not operate where the alleged persons responsible for the incidents of sexual harassment could not be identified. This meant the Court said, that any response to the employee’s complaint made to the Head of Department on 10th October 2014 fell to be dealt with outside established mechanisms and procedures in place in the College. It also noted that the Equality Officer was not consulted on any proposed course of action to deal with the complaints.

No evidence was put before the Court which established that the issue of sexual harassment and harassment based on gender were specifically raised during any of these interactions with the class. Whilst a training programme was put in place for the employee’s class, the Labour Court noted that there was no evidence that this programme specifically addressed the issues of sexual harassment or harassment based on gender.

Determination

The Labour Court found that, while the Respondent did take steps in response to the complaint, it could not be found to have taken such steps as were reasonably practicable to avoid a recurrence of sexual harassment and harassment based on gender. The College was therefore liable for the sexual harassment and harassment suffered by the complainant on the grounds of gender.

The Court directed:

  1. Compensation of 10,000 to be paid to the complainant for distress and the effects of harassment and sexual harassment based on gender.
  2. The College to review the operation of its Dignity and Respect policy and in particular the effectiveness of arrangements in place to communicate the policy to students and, as part of those arrangements, to communicate the Respondent’s intolerance of sexual harassment and harassment based on gender.
  3. The Respondent to review the effectiveness of arrangements in place to respond to complaints made by teaching staff of sexual harassment and harassment based on gender by students, including where the identity of individuals involved is not known to the victim.

Case Lesson

This case demonstrates not only the importance of having a proper dignity and respect at work policy in place but also stresses the importance of ensuring all employees and students are aware of it. Any training policies should clearly set out how complaints are to be dealt with and an equality officer (if appointed) should be involved in all stages of designing training programmes or responding to complaints.