In a recent adjudication, the critical error made by a manager, regarding a masseuse’s refusal to massage a client whom she alleged was sexually harassing her, was heard. According to a new WRC decision at Lansdowne House in Dublin, this situation involved harassment.
The complainant informed her manager that the customer was intentionally exposing herself and that it was an abusive act. The manager instructed the complainant to massage the client regardless. After her repeated refusal, the manager performed the massage.
The following day the complainants manager complained about her refusal to massage the customer.
The adjudicating officer stated that this “demonstrated that there was no appropriate training given to leadership on the ground to deal with a sexual harassment complaint”.
The IHREC code of practice on harassment and sexual harassment defines sexual harassment as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment for the person.” The Employment Equality Acts (1998-2015) obligates employers to protect employees from harassment and sexual harassment.
While the employer’s HR department responded “professionally and properly” to the harassment complaint, the adjudicator noted that this was after the employee had raised the concern with her line manager. “Generally speaking, the most important tier of management when countering harassment is that of the victim’s line manager. An office based team offering support after the fact is no substitute for this”, the AO said.
The employer argued that the conduct was not sexual in nature. The AO emphasised that harassment is conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment for the person.
The adjudicator awarded the complainant €2,000 compensation.
The complainant had originally submitted her claim to the WRC alleging race discrimination. However, it was clear from her complaint that her referral contained an allegation of sexual harassment. The adjudicator noted, “the WRC complaint form is not a statutory instrument and is not the only method in which a claim can be referred to the WRC. The form contained substantially more information than if the complainant had simply ticked sexual harassment on the form”.
The case serves a useful reminder to all employers and managers about the duty to have clear and accessible complaint policies, the duty to investigate promptly and the need to act quick and meaningfully to prevent further occurrences of inappropriate incidents.
