Two sexual harassment cases with contrasting outcomes for the two employers

Two recent cases involving complaints of sexual harassment that eventually led to the WRC illustrate the expectations on employers and what employers need to do to mitigate risks attached to complaints of sexual misconduct.

Outcomes

In one case, there is a significant award of €27k against the employer and the outcome of a constructive dismissal complaint pending. In the other complaint, the case against the employer was not upheld and the employer was credited by the WRC with doing everything right.

Two Contrasting Cases

In the case of Ability West, a charity in the west of Ireland, the claimant, a female employee, had been sexually harassed by her line manager who had been sending her lewd texts and unwanted touching over a period of time in May 2019. An independent investigation was conducted, her complaint was upheld and the line manager was dismissed.

However, the WRC upheld the employee’s discrimination claim, and ordered Ability West to pay the employee €27,000 in compensation. The WRC’s decision on the employees complaint of constructive dismissal has not yet been published by the WRC.

In the other case against RTE, the employee was sexually harassed by her colleague, a journalist, over the course of 3 nights when they were working together through his sending inappropriate messages. After 3 nights, the female employee complained, an investigation was conducted, her complaint was upheld and her colleague was dismissed.

The circumstances are almost identical to the Ability West case, but the outcome was entirely different.

In the RTE case, the employee’s claim for discrimination was not upheld and RTE were cleared of liability in the case which involved a claim against RTE for €300,000.

Reasoning and Lessons for Employers

In the Ability West case, the WRC stated that simply having a Respect and Dignity policy in writing and available, no matter how comprehensive it might be or how quickly it kicked in after the complaint was not sufficient to make out the defence the organisation was seeking to rely on.

The WRC Adjudicator added that Ability West had failed to show it had provided “any or adequate” training on its dignity at work policies and the nature of the texts from the line manager suggested he was “unaware” of the policy.

The WRC found that the standard of training on sexual harassment in the organisation was not sufficient.

That was after its former human resources director admitted in evidence there was no record of any such training.

On the other hand, in the RTE case, the WRC adjudicator found that while the complainant was sexually harassed she was not discriminated against by RTE. She found that RTE had acted appropriately in the matter by investigating the complaint and taking all reasonable steps to prevent more harassment, and so could not be held liable for the effects of discrimination. 

RTE were commended for having a comprehensive policy which was communicated to all employees and managers had been trained managers in it. There was a swift response to the initial informal complaint, and investigation panel was established and commenced their investigation within 4 days of the complaint. RTE did not require the employee to work the night shifts, they provided the employee with EAP and sick pay, and they implemented the recommendations of investigation.

The key lessons are to adequately communicate and train staff and managers on the Respect and Dignity policy, and act quickly upon notification of a complaint, informal or formal.