Background
The case of Care Worker v Costern Unlimited Company (ADJ00046268) examines the circumstances under which it will be deemed reasonable for an employee to resign and bring a claim of unfair dismissal by way of constructive dismissal on foot of a failure of their employer to properly investigate their complaints.
A Care Worker (the Complainant) brought a complaint under Section 77 of the Employment Equality Act, 1998 and Section 8 of the Unfair Dismissals Act, 1977 against Costern Unlimited Company (the Respondent) to the Workplace Relations Commission (WRC), alleging that she had been sexual harassed and the company had not taken adequate steps to protect her safety or address her concerns.
The Complainant alleged that she was subjected to sexual harassment by another work colleague. She alleged that she raised complaints with her supervisor about verbal and physical sexual harassment. She also reported that this colleague was in her view attending at work when she observed him to be intoxicated.
She alleged that despite these allegations the Respondent employer continued to schedule both on the same shifts. While they were not in the same work area they would meet. This left the Complainant in a state of distress, anxiety and fear for her personal safety. The Complainant alleged that arising from the Respondent employer’s failures, she had no alternative but to leave her employment and this amounted to a constructive dismissal.
The Respondent countered that they took the allegations of discrimination and a colleague being intoxicated as very serious allegations. They were investigated thoroughly having regard to both parties’ rights to natural justice. There simply was not enough evidence to support the allegations, they maintained.
The Respondent argued that it cound not be held vicariously liable for an employee’s conduct when it had carried out all reasonable steps to ensure that the workplace is free of harassment and where all employees know how to escalate any grievance.
Legislation and Case Law
The complaints were primarily grounded in Section 77 of the Employment Equality Act, 1998 and Section 8 of the Unfair Dismissals Act, 1977, wherein the complainant alleged that, on foot of breaches under the employment legislation, she had no other option but to resign.
Although this case primarily relates to a claim of sexual harassment, it could be relied upon by any employee who is alleging that their grievances are not being properly investigated, addressed or remedied by their employer.
A number of cases were cited by both parties.
In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’ And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’
The Adjudicaton Officer noted that in Murdoch and Hunt 2021 ‘Prima Facie’ is defined as:
“On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.”
The principle in discrimination litigation is that once a complainant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.
The Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’
It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test.
However Sexual Harassment can be distinguished from other grounds.
The Employment Equality Act 1998 as amended defines harassment at section 14 A as:
(7) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
The Adjudication Officer noted in Employment Equality Law 2nd ed (Bolger, Bruton and Kimber) Round Hall Press the scope of harassment is defined and also under the Act what constitutes harassment, importantly it can be a single event.
“It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. In addition, the definition of bullying which has been accepted by the Supreme Court and High Court refers to “repeated inappropriate behaviour” and specifically excludes a single event. There is no similar requirement in the definition of harassment or sexual harassment in the Employment Equality Acts. Therefore, a single complaint of harassment or sexual harassment can breach the Acts.”
At Chapter 12.22 the authors state that sexual harassment is actionable per se and does not require to be specifically linked to a discriminatory ground and it does not require a comparator:
“In spite of contextualising harassment and sexual harassment as discrimination in the Directives, it is clear from the definitions of both that there is no requirement to locate a comparator to prove either harassment or sexual harassment. Indeed, it has been very significantly recognised by the High Court of England and Wales that harassment within European law is a free-standing ground of complaint, distinct from that of discrimination. Therefore, even if arguments were made that the perpetrator of the harassment would have behaved in the same manner towards a male employee as he did towards a female employee, such arguments would be irrelevant as there is no requirement to show less favourable treatment. This is tantamount to the recognition of harassment and sexual harassment being actionable per se, and broadens the circumstances in which harassment and sexual harassment can arise and establishes them as free-standing causes of action within European and Irish law. The express recognition of sexual harassment as a cause of action carries the potential to bring the hostile environment type of harassment beyond harassment on grounds of gender so as to protect female employees from degrading treatment within the workplace, such as being given the most menial of tasks.”
The Respondent carries the burden of proof once the Complainant has met the prima facie threshold of evidence. The Adjudication Officer determined that her compelling oral evidence at the hearing met that threshold so the burden shifted to the employer.
Decision
Ultimately, the Adjudication Officer decided that the Respondent did not take sufficient action to ensure the safety of the Complainant.
The Adjudication Officer determined that many of the actions relied upon by the Respondent appeared to post-date the incidients complained of:
“At its height the Respondent has produced comprehensive polices; however, they are post-dated the allegations being made by the Respondent. No training records have been produced. I have concluded that on the evidence the Respondent has not discharged that burden of proof that rests on them that they took reasonably practicable steps to prevent the harassment. I made this finding as no evidence has bee presented to show that at the alleged time of the alleged incidents the employer had comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action. No details of an induction training programme have been provided. No relevant training records have been produced and polices being relied on are post-dated the alleged incidents.”
In respect of the constructive dismissal claim, the Adjudication Officer determined that it was reasonable for the Complainant to resign as there was no evidence further action would be taken:
“Allowing for the effects of the harassment on the Complainant and the absence of proactive policies at the date of the resignation I find that the Complainant was in fact constructively dismissed. It was reasonable for to her assume that nothing would change and there was every likelihood of future incidents of inappropriate touching by a work colleague, with little consequence. In fact, there was no requirement to make a further grievance as it would give rise to the same outcome, with limited change and continuing anxiety that without corroboration she was helpless. I must determine on these objective grounds that the Complainant was constructively dismissed.”
Takeaway
The takeaway for employees considering bringing a complaint of constructive dismissal is to identify what breach of contract or legal obligation has arisen as a consequence of the actions or inactions of an employer and determine whether an appropriate opportunity has been provided to that employer to remedy the complaints before resigning.
For employers, it will be necessary to demonstrate that, if a grievance is raised by an employee, whether it relates to bullying, harassment or any other issue, that they took reasonable steps to enquire as to the nature and substance of the complaint as well as any remedial action that may be available to them.
Further information
This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@wordpress-576593-6594403.cloudwaysapps.com or contact the offices of Crushell & Co Solicitors.
