The issue of discrimination in the workplace including victimisation continues to dominate workplaces including schools and in this regard it is worth revisiting the case of A Female Teacher (Complainant) v Board of Management of a Secondary School (Respondent) DEC-E/2012/103 published by the Equality Tribunal last summer which concerned the difficult issue of sexual harassment and the Complainant’s contention that she was dismissed as a result of complainants made which she alleged constituted victimisation.
Although a lengthy decision, it is worth reading for the synopsis of the law in this area. The Complainant was ultimately awarded €75,000 in respect of victimisation.
Background and Complainant Made
The Complainant in this case was a female teacher who alleged that the Board of Management of a Secondary School discriminated against her in relation to terms and conditions of employment contrary to Section 6(2) of the Employment Equality Acts 1998 (as amended) (“the Acts) on the grounds of gender. The Complainant also alleged a breach of Section 8 of the Acts in that the Respondent did not offer her the same treatment concerning her probation, supervision and dismissal afforded to others known as her “comparators”. She also alleged that she was sexually harassed within the meaning of Section 14 and victimised within the meaning of Section 74 by being dismissed following complaints of sexual harassment.
The Tribunal in this case looked extensively at the School’s disciplinary process including School Guidelines and its Code of Behaviour which provided inter alia for a “detailed and graduated series of school actions/responses” which would apply to “deal with breaches of school guidelines”. It also dealt with the process of a sequence of breaches and referred to a monitoring card system which was central to the administration of monitoring/promotion of behaviour/improvement in relation to the pupils at the school. As part of the system at the School, a “short circuit offence” provided for instant action to be taken including suspension.
The Complaint in this case was employed under a contract of indefinite duration dated July 2007 and had previously given up a permanent position at another school to take up the role. The Complainant alleged that she was excessively supervised by the Principal, endured a lack of support from school management, was sexually harassment by a number of male pupils, that the Respondent failed to investigate her complaints of sexual harassment, there was a negative assessment of her work as a result of making allegations of sexual harassment and ultimately her contract was terminated as a result of making those allegations. The Tribunal decision details extensively the allegations made by the Complainant and the Respondent’s response in relation to same.
The Respondent stated that a number of unsubstantiated allegations were made against a number of pupils but no corroborating evidence of any type could be established and felt that justice and fairness was best served by disregarding the allegations as no corroborating evidence was uncovered despite the thoroughness of the investigations which took place. The Respondent decided not to renew the Complainant’s contract as the Board felt that she had not satisfactorily completed her probationary period. The Complainant argued that failure to renew her contract constituted victimisation.
The Equality Officer in the first instance referred to the burden of proof required under Section 85A of the Acts insofar as it is for the Complainant to establish in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. He noted that it is only when the Complainant has established this that it is for the Respondent to prove the contrary. The Officer referred to the Labour Court case of Arturs Calpeters v Melbury Developments  E.L.R. 64 concerning the burden of proof in such cases.
The Equality Officer concluded:
- In respect of excessive supervision by the School Principal, the Complainant did not present any evidence that she was treated less favourably because she was a woman.
- In respect of damage to the Complainant’s car, this does not constitute discrimination unless it was harassment on one of the discriminatory grounds and no evidence was presented by the Complainant that her car was interfered with because she was a woman.
- No evidence was presented by the Complainant that she was dismissed because she was a woman.
- The Equality Officer looked extensively at the claims of sexual harassment whereby the Complainant alleged that she reported incidents of what she considered to be sexual harassment to the school management but their response was inadequate. The Respondent argued that it had taken all such steps as were reasonable to present any such harassment, which was denied and relied on Sections 14A(2) and Section 15(3) of the Acts. The Respondent also stated that it had sufficient policies and guidelines in place to ensure a harassment free workplace for all employees. The Equality Officer noted that there was no evidence to support the Complainant’s claims that words spoken of were actually spoken but that there was evidence produced at the hearing of a crude drawing of male sexual organs scrawled on a pupil’s notebook and therefore the Equality Officer asked whether the Respondent was liable or able to rely on the defence outlined in Section 14(2) i.e. that an employer took such steps as were “reasonable practiable” to “prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim”. The Tribunal distinguished the case of A Boys Secondary School v Two Female Teachers Labour Court Determination AEE/01/9 and concluded that the Respondent did not discriminate in relation to the Complainant’s conditions of employment by failing to take such steps as were reasonably practicable to prevent sexual harassment.
- In respect of Victimisation, the Equality Officer referred to the definition as set out in Section 74(2) of the Acts and concluded that her contract was terminated as a reaction to the complaints of discrimination (in the form of sexual harassment) and that the Acts did not provide for a defence which would justify victimisation. The Officer also noted that “the arguments of the respondent that they were acting in the best interests of the whole school community cannot be entertained as a defence”.
The Equality Officer noted that the Complainant had requested reinstatement but noted that it would not be in the best interests of all given the “obvious breakdown in relations within the School”. In determining the level of compensation the Equality Officer had regard to the “devastating impact of the loss of her job had on the complainant’s career” and that she went from having a full time job with a contract of indefinite duration on a salary of €50,000 per year to earning just over €300 per week as a part time teacher.
- The Complainant was not discriminated against by the Respondent in relation to her terms and conditions of employment contrary to Section 6(2) and Section 8 of the Acts.
- The Complainant was not sexually harassed at her place of work by pupils of the Respondent within the meaning of Section 14A(1)(a)(iii) of the Acts.
- The Complainant was victimised by the Respondent within the meaning of Section 74(2) by being dismissed as a reaction to complaints of sexual harassment made and was awarded €75,000 or 18 months salary.
The Equality Officer also confirmed that the award was not subject to income tax as it did not include any element of remuneration.