28 Jul Sexual Harassment by Customers – Employers’ Responsibilities

The Labour Court recently found that an employer had been negligent in how it had handled a complaint from a female bar worker, who received a sexually explicit text from a customer. The decision of the Adjudication Officer who had not upheld the inital complaint was overturned and the Complainant’s appeal was successful and she was awarded €15,000 in compensation.

The Complainant had been employed in a bar from October 2017 before she resigned in September 2019. The Complainant had made a complaint to her employer after receiving a text message on 9th March 2019 from a regular cutsomer, that was disgusting and very explicit in nature and made her feel uncomfortable and caused her to have a panic attack. The matter was also reported to the Garda Siochana who advised that the text message constituted sexual harassement and perhaps was of a criminal in nature.

The Complainant said it was agreed by the Managing Director that the customer would be barred from the premises.

The Complainant was shocked to see the customer return to the bar on the 23rd August 2019 as well as being in the company of the Managing Director with whom he was having lunch with and asked her Supervisor if she could leave early. The following evening, the customer was again in the bar, which upset her greatly and she again spoke to her supervisor. The Complainant then made it clear to the Managing Director that she was very upset and felt unsafe and intimidated, and she understood the customer had been barred for life.

The Managing Director told her that that the barring period of six months was over and the customer was able to return and told her he could not bar him for sexually harrassing her or because she felt uncomfortable, and advised her to talk to the customer. The Managing Director also told her he could not bar all the men that might be thinking the same thoughts as the customer had.

The Complainant made it clear that she could not continue in her employment if appropriate action was not taken. The Complainant then resigned and left her employment immediately on September 11th and advised the Labour Court that it was very clear to her that her employer did not acknowledge how serious the situation was in respect of the degrading and humiliating message she had received and the impact it had on her.

The Respondent employer asserted that the Complainant was obliged to have raised her concerns formally through the grievance procedure as per the Employee Handbook which had been issued in February 2018 to her, They stressed that they had previously acted quickly when the matter of the text message was first raised, including involving the Garda. The employer also oulined that the customer had agreed to apologise to the Complainant on his return to the bar and had undertaken not to repeat the behaviour.

The Managing Director agreed that he had told the Complainant that he could not bar all men who might be thinking inappropriately, but had made it clear he didn’t agree with what had happened, and told the Court they were fully prepared to investigate the Complainant’s concerns further if she had used the grievance procedure.

The Managing Director confirmed that the customer had been allowed to return early, five and a half months after the incident and at that stage had not apologised or given any undertaking about his future behaviour, but said it had been agreed that he would only be barred for 6 months. It was also confirmed that no notice had been given to the Complainant about the customer returning.

The Respondent sought to rely on Berber v Dunnes Stores [2009] and said the Complainant had not established that the conduct of her employer was so unreasonable that she had no choice but to resign.

The Court determined on a number of points of evidence that were in conflict, that the evidence of the Complainant was clear and credible, in contrast to the Managing Director who could not recall what had been said, as opposed to recalling that statements were not made.

The Court accepted that the standard for constructive dismissal had been met, through the unreasonable actions of the Respondent in allowing the customer return early and without prior notice, when he had clearly caused such distress to the Complainant.

The Court noted that the Respondent had trivialised the Complainant’s response to the return by referring to other male customers.

The Court deemed that the failure of the Complainant to use the grievance procedure was not detrimental to her case, given that the Managing Director had previously engaged with her, without any requirement to use formal procedures,. The Court noted it was reasonable to predict that the grievance procedue would not serve the Complainant well on the basis of the assertions made by the Managing Director about not believing the impact on the Complainant and his references to how other men thought.

The Court awarded the Complainant €15,000 in compensation noting that she had not fully made adequate efforts to mitigate her losses. (Ref UDD2322)

Employers should therefore be very aware that the fact that harassement is perpertrated by a paying customer does not in any way negate the responsibility to provide a work environment that is free from sexual harassment.

In addtion, in this case because of the way that the employer initially dealt with the Complaint and the stated prejuducial attitude of the Managing Director, the normal condition that the use of an internal grievance procedure be exhausted before a constructive dismissal claim can be successful was not required.