29 Mar Sexual Harassment At Work

The well publicised case last year in which three care workers in a nursing home were awarded a total of €150,000 for sexual harassment that was perpetrated by a resident, provides some useful reminders for employers on how sexual harassment complaints need to be managed in the workplace (ADJ- 00015039)

In this case, the three workers concerned outlined that they had raised the resident’s behaviour a number of times, which included inappropriate touching and use of foul language, when he was alcohol fuelled, but no action was taken by management to deal with the behaviour or to prevent it happening. A further incident then occurred in January 2018 when three employees were subject to foul and sexually abusive language and assault, when attending to the resident. However on foot of this incident, when the Clinical Nurse Manager was called to the residents room, their concerns were dismissed and the three care workers were instead suspended on an allegation of patient neglect, and were ultimately dismissed in December 2018.

The Complainants and witnesses gave evidence in the Workplace Relations Commission of the behaviour they had been subjected to, when the resident had alcohol taken, which included sexually abusive comments and touching and groping. One of the complainants said that his behaviour was so bad that the younger carers would not go into his room to attend to him.

It was also noted in the resident’s care plan report that there were various references to his tendency to use inappropriate language, and it was advised that staff should maintain a safe distance to allow him to express his comments. The care plan report also said that two staff members should attend to the resident, as he was less likely to use inappropriate language when more than one staff member was present.

The Respondent denied that complaints had been made prior to January 2018, and said that male care assistants could have been used if there were any issues, and it was submitted that there were no documented complaints by the employees. The Respondent further outlined that the resident suffered from dementia and was largely wheel chair bound, who had physical and sight impairments, that would mean it was not possible that he had perpetrated the incidents as alleged, and they suggested there was a big difference between suggestive comments and remarks being made than any physical aspect as alleged, which they did not believe had happened.

The Adjudication Officer whilst noting that the Respondent had to balance its obligations to its residents when dealing with challenging behaviour, determined that the focus had only been on the resident and they had completely failed to handle the complaints from their staff appropriately and had failed to put in places measures to stop the harassment from occurring.

The Adjudication Officer further determined that the evidence provided by the Complainants had been credible and backed up by the very tangible care plan report notes, and therefore said she could not accept the Respondent’s position that they were unaware how bad the residents behaviour was, or that there were any issues of concern.

The Adjudication Officer said she was satisfied that harassment as defined under Section 14 (A) of the Equality Acts had occurred, and furthermore was serious in terms of nature and impact it had on the Complainants, and it went beyond any banter or involuntary behaviour that could be attributed to dementia. The Adjudication Officer referred to the well established principle, that it was irrelevant whether the harasser did not intend to harass, and may have believed that it was mere banter, and said there was no requirement that the conduct itself was reasonably capable of being considered to be harassment, and it was the subjective impact of what occurred that was relevant.

The Adjudication Officer then went on to review whether the Respondent had taken any reasonable actions that could constitute a defence, as available under Section 14 A (2) of the Equality Acts, in regard to preventing sexual harassment occurring or reversing its impact when it had occurred.

In this regard it was noted that there was a policy in place in the employee handbook, but said there was no evidence of training being provided, and in particular in noting the residents care plan, there was no evidence of an effective implementation of the policy and anything being done to prevent the harassment occurring. The Adjudication Officer further stated that there was a total failure on the part of the Respondent to reverse the effect of the sexual harassment as was occurring, as well as an outright failure to take the complaints made seriously and to investigate appropriately.

It was therefore determined that the sexual harassment as occurred constituted discrimination on the grounds of gender, in the course of employment.

It was further determined that victimisation occurred in the subsequent treatment of the complaints by the Clinic Nurse Manager on being called to the room, and the initiation of the suspension and disciplinary processes that led to dismissal, and said the Complainants evidence was preferred in this regard in respect of the alleged neglect.

Each complaint was awarded a total of €50,000 (2.5 years salary approx.) amounting to €30,000 for the distress caused by the effects of the harassment, plus a further €10,000 each for victimisation and penalisation from the resulting unfair dismissal.

The Respondent was also directed to ensure that all management staff receive appropriate training in it’s policies on harassment and sexual harassment.

Here are some of the main takeaways from this case for employers:

• It is not enough that a policy is in place as a tick boxing measure. It must be “live” and in particular managers must be trained in how to deal with potential complaints of sexual harassment.
• All complaints must be taken seriously and reviewed and never dismissed outright.
• This does not always mean that a formal investigation is required, but sufficient review must be undertaken and appropriate measures put in place to ensure that the inappropriate behaviour and it’s impact is stopped.