Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2457/01

APPLICANT: Jeannette Donnelly

RESPONDENTS: 1. McAnerney Brothers Limited

2. James Jordan

DECISION

The unanimous decision of the tribunal is that the applicant was subjected to unlawful discrimination on grounds of sex and the tribunal awards her £9,500.00 for injury to feeling, £8,000.00 for special loss plus interest of £3,038.00 thereon.

Appearances:

The applicant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by John J Rice & Co, Solicitors.

The respondent was represented by Ms Anderson, Peninsula Business Services.

1. The applicant who is aged 24 commenced employment with the first respondent in or about June 1997 as a Bakery Decorator.
2. On 11 May 2001 the applicant made a written complaint to the first respondent concerning the second respondent, who was at that time the Bakery Manager.

The letter of complaint referred to repeated verbal sexual harassment and an 'unwanted sexual advance' which allegedly occurred on 28 April 2001.

3. The second respondent admitted that he 'liked a bit of a laugh and a bit of dirty talk' but denied that any physical contact had occurred between the applicant and himself on 28 April 2001. In particular he admitted asking the applicant if she would strip for money but insisted that the question was asked in the context of a conversation between a number of employees, including the applicant, in relation to whether they would agree to have sex for money, and was a joke.
4. The first respondent interviewed the applicant, the second respondent, and other employees, namely Declan Smyth and Celina Quinn. Having completed his investigation, Mr Aidan McAnerney convened a disciplinary hearing for the second respondent to provide an explanation for:-

(1) the allegation that [he] sexually harassed [the applicant] on Saturday 28 April 2001;

(2) that [he] asked [the applicant] to strip and offered money if she did it.

Mr McAnerney concluded that since there was no independent corroborative evidence of the incident on 28 April 2001, no disciplinary action would be taken against him. However in relation to the second allegation, he was given a Final Written Warning to remain on his file for 12 months.

5. The applicant lodged proceedings dated 20 June 2001 for sex discrimination against the first and second respondents. She complained that she had been subjected to smutty and lewd comments over the previous four months by the second respondent. She further complained that she had been subjected to an unwanted sexual advance on 28 April 2001, and that thereafter the second respondent had continued to make dirty and smutty comments about the incident.
6. The tribunal heard evidence from the applicant, Declan Smyth, Celina Quinn, Fearghal Ward, Aidan McAnerney and the second respondent. Having heard the evidence, and observed the demeanour of the witnesses the tribunal finds the following facts proved on a balance of probabilities:-

(i) At the material time the respondent employed approximately 100 employees in the business which consisted of a supermarket, petrol station and bakery.

(ii) None of the respondent's employees including the Managing Director, Mr Aiden McAnerney, had received training in Equal Opportunities. The respondent relied on the advice of Peninsula Business Services as and when required.

(iii) The second respondent had received no training in people management. The tribunal accepts that although he, like all other employees, had received a company handbook at the commencement of his employment which included the company's sexual harassment policy, he had not read it, nor was he aware of its contents. No effort was made by the respondent to ensure its employees were familiar with the sexual harassment policy.

(iv) In particular, the second respondent was not aware until these proceedings that sexual harassment could include any unwanted conduct of a sexual nature affecting the dignity of women and men at work, including 'dirty talk' or sexually explicit language.

(v) It was not until after the applicant made her complaint that the second respondent was asked to attend a training course on Equal Opportunities.

(vi) The tribunal accepts that lewd and smutty comments were commonplace in the respondent's Bakery Department. The second respondent admitted that he would frequently make remarks with sexual connotations. He regarded it as a 'laugh'. The second respondent regularly asked fellow employees "what would they like to do with their hand, mouth, etc" and asked explicit questions about oral sex. On a couple of occasions he made comments about the physical shape of one of the respondent's disabled employees, which made the applicant feel sick. Sometimes he would describe his sexual fantasies. This went on almost on a daily basis.

(vii) The tribunal accepts the evidence of Declan Smyth and the second respondent that Fearghal Ward, Assistant Manager, was fully aware of the nature of the language used in the Bakery Department.

(viii) As far as the general lewd talk was concerned, there is no evidence that the applicant was singled out by the second respondent. Indeed the evidence is clear that the second respondent made remarks to and about all of the employees.

(ix) On one occasion prior to 28 April 2001, the employees employed in the Bakery Department including the applicant became involved in a conversation regarding a radio programme.

Sara Cox a DJ with Radio One had initiated a discussion about people agreeing to have sex with a stranger in return for money. The talk in the bakery turned to whether the individuals would be prepared to do that and if so how much money they would want.

(x) However, later that day the second respondent approached her and asked how much money she would want to strip for him. The applicant perceived this incident as something quite different to the general smutty talk which went on regularly in the bakery. She felt cheap and shocked that the second respondent actually believed she would be prepared to do such a thing. She told him that she was not that hard up for money.

(xi) Shortly after this incident, the applicant and another employee, Celina Quinn, approached Fearghal Ward, the Assistant Manager, and complained verbally about the second respondent. The applicant's evidence was that the second respondent was giving her a hard time and she cited the example that if buns were not up in time he would have shouted at us. She also said that she complained about the second respondent's general talk, but did not go into detail with Mr Ward. Mr Ward could not recall the conversation but accepted that it may have taken place.

(xii) It is accepted that thereafter a written complaint was given to Mr Ward by the applicant. The content of the complaint was however a matter of dispute. Mr Ward recalled that the complaint only concerned another employee, namely Declan Smyth, who had made an offensive remark (although not of a sexual nature) to the applicant. The applicant insisted that she had also referred to the second respondent in the letter. The letter was not produced to the tribunal and the first respondent gave evidence that the letter could not be found.

(xiii) The applicant gave evidence that on the morning of 28 April 2001 she was subjected to a physical incident of sexual harassment by the second respondent. She described coming into work at approximately 5.00 am, and shortly afterwards Declan Smyth left to go home, leaving her alone with the second respondent. The second respondent had just returned from holiday, and told her how he had watched girls rubbing oil on themselves through sunglasses which concealed his behaviour. The applicant stated that the second respondent then told her he had locked the bakery door. He came from behind her and tried to kiss her on the neck, while both his hands were on her waist. He tried to touch her breasts but her elbows pushed him away. He could tell that she was wearing a wired bra, because he later made comments to that effect.

The applicant told him to stop it, and kept moving her neck forward to stop him kissing her. The applicant thought that the incident had lasted approximately 15 minutes. She then left to go to the shop. She explained that she did not know whether she was going to return or not, but decided to return because she didn't know what story the second respondent might make up about her if she left. Before leaving she had asked him if he wanted something in the shop, and had brought him back a bottle of lucozade. When she returned, the second respondent pulled her towards him and asked if he could kiss her, the applicant refused and pulled herself off him. The second respondent said a lot of girls would not have turned him down. The applicant said he stopped his behaviour and fifteen minutes later the shop was open for business and another employee came in.

The second respondent denied that anything untoward had happened at all. He merely described chatting about his holiday and working as usual.

(xiv) In reaching its conclusion that the applicant was subjected to the incident that she described, the tribunal is mindful that the standard of proof which we must apply is a 'balance of probabilities', and not the criminal standard of 'beyond a reasonable doubt'. The phrase 'beyond a reasonable doubt' is often explained nowadays as meaning that the tribunal of fact must be 'sure' that the acts occurred. This is higher than the standard of proof in this case. In reaching our conclusion that it is more likely than not that the acts alleged by the applicant occurred, we take into account the following matters:-

(a) The fact that the second respondent was happy to admit in his written statement to the respondent:-

"I'm not going to lie, I like a bit of a laugh and a bit of dirty talk as it has been in McAnerney's Bakery from long before I worked there ..."

(b) Celina Quinn gave evidence which we accept, that on 2 May 2001 the applicant told her about the incident the previous Saturday. Ms Quinn also confirmed that on Friday 4 May 2001, she agreed to work in place of the applicant because she could see that the applicant was 'in a panic' about being on her own with the second respondent after he had given another employee the night off. Ms Quinn also gave evidence that on Friday 4 May 2001 the applicant came to her house with her boyfriend and said she could not face the second respondent any more, and she would have to make a complaint. Ms Quinn confirmed that the second respondent did make remarks that were 'unacceptable' to other young girls.

(c) Declan Smyth gave evidence which we accept, that the second respondent 'was always a bit sleazy'. He confirmed that on the morning of 28 April 2001 the second respondent asked him if he would like to go home early because he was tired, after the applicant rang to say she would be in early.

(d) The fact that the second respondent readily admitted to 'dirty talk' and asking the applicant to strip for money does not in our view suggest that he is likely to be telling the truth when he denies a physical act of harassment as was contended on his behalf. It is quite clear from the evidence that the second respondent did not know there was anything wrong with using sexually explicit language in the workplace, and that he did not know that it could constitute sexual harassment.

(e) It is not surprising that no witnesses were present. If one employee is going to sexually harass a fellow employee one would expect that he/she will choose an opportunity when the act is unlikely to be observed.

(f) Although the first respondent's representative pointed out that the door in the bakery was an emergency exit and could always be opened from the inside, the tribunal heard evidence that the door could be locked so as to ensure that no one came in from outside. At his disciplinary hearing, the second respondent appeared to agree that he had locked the door in this way on the morning of 28 April 2001 because he said:-

" ... As far as me locking the door, it was a Saturday morning and sometimes young lads will try to come into the bakery if the door isn't locked ...".

The tribunal therefore accepts that the second respondent did tell the applicant that he had locked the bakery door.

(g) We accept that the reason she did not make a complaint immediately was because she did not think anyone would believe her.

(h) The tribunal found the applicant to be a straightforward, truthful witness, and it finds the applicant's evidence to be more credible then that of the second respondent.

7. The applicant complained that the respondent chose only to investigate the allegation that she had been asked to strip for money and the incident which took place on 28 April 2001, but failed to investigate her complaint about unwanted verbal sexual harassment by the second respondent on a regular basis. Mr McAnerney on behalf of the respondent contended that he had been unable to obtain any specific details of the language from any of the witnesses interviewed. The tribunal does not accept that there was any attempt to investigate this aspect of the applicant's complaint.

The tribunal has seen copies of question and answer sessions which took place between the applicant and Mr McAnerney, Declan Smyth and Mr McAnerney, the second respondent and Mr McAnerney during the disciplinary hearing, and statements from all of those people in addition to Celina Quinn. At no time is it recorded that any of these persons were asked to provide specific examples of unacceptable language by the second respondent.

The tribunal does however accept that after the applicant's complaint, Mr McAnerney took steps to ensure that talk of a sexually explicit nature did not occur in the workplace.

8. The applicant also complained that the second respondent was not suspended from the workplace after her complaint. The tribunal is satisfied that the reason for this decision was that the second respondent was already absent from the workplace on sick leave following the applicant's complaint and therefore, in the respondent's view, it was unnecessary to formally suspend him pending the outcome of the investigation. The respondents' procedure states that "on receipt of a formal complaint we will take action to separate you from the alleged harasser to enable an uninterrupted investigation to take place. This may involve a temporary transfer of the alleged harasser to another work area or suspension with pay until the matter has been resolved".
9. The tribunal also accepts that the first respondent attempted to re-locate the applicant in another area of the business after the second respondent had been given a Final Written Warning, but that realistically the applicant could not be prevented from coming into contact with the second respondent and that she left her employment for that reason.
10. The tribunal was concerned that there were various breaches of the first respondent's own policy on sexual harassment in the way in which the applicant's complaint was handled:-

(a) The policy states that "individuals will be appointed to provide advice and assistance to employees who are subject to harassment. The name of these designated advisers will be made known to all employees". It also states that "an adviser can be contacted at any stage in the informal or formal procedure".

However, when Mr McAnerney was asked about this, he admitted that no such individuals existed within the respondent company. Indeed since no one in the company, including senior management, had had any training in Equal Opportunities at that time, no one could have acted in this capacity.

(b) The policy also states that after the investigation is concluded "a draft report of the findings and of the investigator's proposed decision will be sent, in writing, to you and to the alleged harasser". The tribunal is satisfied that no such report was ever sent to the applicant.

(c) The policy states that "this policy and procedure will be communicated effectively to all employees and we will ensure that all employees and all managers and supervisors are aware of their responsibilities. Appropriate training may be provided including training on induction and management courses".

It is clear from the evidence of the applicant and the second respondent that they knew nothing about the contents of the sexual harassment policy until after the applicant had made her complaint, even though they had been given a copy of the company handbook at the commencement of their employment.

Furthermore, no training in sexual harassment or Equal Opportunities occurred until after the applicant had made her complaint.

The tribunal is satisfied from the evidence which it heard that the actions of the respondent company fell short of the standards set out in its paper policy at the material time.

The Law

11. The applicant relies on Articles 3(1)(a) and 8(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976. In British Telecommunications PLC v Williams [1997] IRLR 668 EAT sexual harassment was described as a particular form of discrimination on the grounds of sex which can best be defined as "unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work". In Strathclyde Regional Council v Porcelli [1986] IRLR 134 it was stated that "if any material part of unfavourable treatment to which a woman is subject includes a significant element of a sexual character to which a man would not be vulnerable, the treatment is on grounds of the woman's sex" within the meaning of the legislation.

The tribunal is satisfied that the applicant was unlawfully discriminated against on grounds of her sex by the second respondent.

12. Article 42 of the Sex Discrimination (Northern Ireland) Order 1976 states as follows:-

"42(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

...

42(3) In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description".

The first respondent, properly in our view, conceded that on the facts of this case it could not rely on the statutory defence contained in Article 42(3).

13. It therefore follows that the first respondent is vicariously liable for the unlawful acts of the second respondent.
14. The tribunal invited submissions from the parties as to whether an award of compensation should be made against both respondents, or whether the award should be apportioned between the two respondents. The parties, not surprisingly, urged the tribunal to take the course most beneficial to their individual clients. We take the view that since the applicant did not request us to apportion the compensation, we should not do so. Accordingly the award is against both respondents.
15. In relation to injury to feelings the tribunal heard evidence from both the applicant and a Consultant Psychiatrist, Doctor Quigley. The tribunal accepts that after the second respondent had asked her to strip for money, the applicant felt cheap that she would be perceived in this manner by him. Following the incident on 28 April 2001, she felt very low and cheap. She was depressed, which was not helped by the fact that she was now out of work as a result of the incident. She was reluctant to leave her home in case she bumped into the second respondent, and was uncomfortable in the company of her boyfriend's friends. The applicant was prescribed anti-depressant drugs and her condition began to improve from around Christmas 2001. However in anticipation of the tribunal case her symptoms had worsened.

Doctor Quigley examined the applicant on 18 June 2002 just over a year after the most serious incident and concluded that the applicant had suffered from a chronic adjustment order. He described the adjustment order as chronic because it had lasted more than six months. It was within the mild spectrum of illness. At the date of examination Doctor Quigley did not find her anxious or depressed nor did she have any biological markers of disturbed affect such as sleep or appetite disturbance.

Doctor Quigley considered that the applicant was unlikely to have any long-term sequelae.

The applicant told the tribunal that she was now feeling better and had a new job.

16. The applicant referred the tribunal to the decision of Vento v The Chief Constable of West Yorkshire [2003] IRLR 102 which provides guidance on the issue of compensation from injury to feelings.

The Court of Appeal identified three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury:-

i. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious case, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. [The Vento case] falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

ii. The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

iii. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

The decision also pointed out that within each band there is considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.

17. The tribunal is satisfied that the applicant's case falls within the middle band of compensation.

In reaching this decision, we take account of the fact that the second respondent made comments with sexual connotations throughout his employment as Bakery Manager. However the applicant drew a distinction between remarks which were made to all staff, and remarks which were entirely personal to her, such as his request that she would strip for money. We are satisfied that although she was upset by the general lewd remarks, it was the latter which caused her most distress.

In relation to the incident which occurred on 28 April 2001, this was clearly a very serious matter, and the respondent accepted that if the tribunal found that the act had occurred, the third band of compensation would not be appropriate. Although the applicant believed that the incident had lasted for 10 – 15 minutes, we think it unlikely from the manner in which it was described that it could have lasted that long, although we accept that that is her honest perception of the event.

18. The applicant submitted that she was entitled to aggravated damages because she was subjected to examination-in-chief and cross-examination due to the respondent's denial of the applicant's claim.

The tribunal does not accept that either respondent conducted their defence of the case in a manner which would justify an increased award of compensation. Nor are we satisfied that the first respondent acted in a high-handed or malicious way towards the applicant in the investigation of her complaint. As we have pointed out, there were deficiencies in the procedures in this case, but we consider that they were due to a lack of training rather than any other reason. We therefore do not consider that there were aggravating features in this case.

19. The tribunal does not consider that it is possible to award separate amounts for injury to feelings and psychiatric injury in this case as there is such a degree of overlap. Accordingly taking all the evidence into account, the tribunal considers the correct amount to be £9,500.00.
20. The applicant also applied for costs against the respondents. The tribunal's power to award costs is contained in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996. The power is limited to situations where 'in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted scandalously, frivolously or vexatiously, disruptively or otherwise unreasonably', and the maximum award if £500.00. We do not consider that either respondent acted in this manner in the conduct of its defence and we therefore refuse the application.
21. Special loss was agreed at £8,000.00.
22. The tribunal awards interest pursuant to the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The date of the start of the discrimination is 20 February 2001. (The Originating Application complains that the acts began four months earlier and the application is dated 20 June 2001.)

The calculation date is 20 November 2003 and the mid point date is 27 May 2002.

23. The tribunal therefore awards the following compensation:-

(a) Injury to feelings including psychiatric injury £ 9.500.00

Interest at 8% per annum from 20 February 2001

to 1 October 2003 £ 2,088.00

(b) Loss of earnings £ 8,000.00

Interest @ 8% per annum from midpoint £ 950.00

Total Award £20,538.00

24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 26 – 29 August 2003, Belfast

Date decision recorded in register and issued to parties: