Courts and tribunals on the two sides of the Atlantic have long differed on the level of awards to be made in cases involving workplace sexual harassment. In the United States, awards can involve the payment of millions of dollars in punitive damages, while awards of under €10,000 are not unusual in Ireland. This week we look at a case involving sexual harassment at a Irish café. The decision was anonymised by the Workplace Relations Commission (WRC) in order to protect the identity of the Complainant, so the case is simply entitled A Waitress v A Café, ADJ-00035326. Our Adrian Twomey highlights the key points to note in the decision.
The Complainant commenced part-time employment as a waitress in the Respondent's café or restaurant on 1 August 2021 when she was aged just 17. She worked 16 hours per week and was paid €10.50 per hour.
The waitress gave evidence that she arrived for work on 3 September 2021 and was met by her employer. The employer was apparently unhappy about her choice of footwear and kept shaking his head, saying "no". He then lifted her jacket and told her that she should not wear leggings as they made her "ass too sexy". The employer asked a kitchen assistant what he thought. The kitchen assistant apparently just shrugged his shoulders.
The employee gave evidence that she was shocked, began to cry and had a panic attack in the bathroom immediately after the incident. She then voiced her objection to what her employer had said before taking her bag and coat and preparing to leave. Her employer apparently stood in the doorway and attempted to hug her before telling her that she could not go home. He subsequently told her that she should be grateful that she had a job and that if she left, she was not to come back. The Complainant left the premises, went home and told her father what had happened. He called the Gardaí who came and took a statement from her. She subsequently filed a complaint with the WRC under the Employment Equality Act 1998.
At the hearing, the employer gave evidence that he employed "many young girls" and had never had a complaint against him before. He does not appear, however, to have given any evidence in relation to having a policy on harassment and no investigation appears to have been carried out.
The Adjudication Officer accepted the evidence given by the employee and concluded that she had been sexually harassed. She awarded the employee compensation of €2,500; the equivalent of three months' pay.
In some cases, one would very happily accept an award equivalent to three times what the employee had actually earned during the full period of their employment. However, an award of €2,500 does seem to be very small in a case involving the sexual harassment of a minor who also lost her job as a result of the incident.
The European Court of Justice has previously found that awards of compensation must be such that they have a deterrent effect. In other words, awards must be high enough to convince defendants not to repeat their offences. Similar thinking prevails in the United States, where courts have often awarded sums totalling millions of dollars in order to convince large companies that they need to make serious efforts to prevent workplace sexual harassment. One wonders if an award of €2,500 - which might equate to the profits of the café over a day, two days or even a week - will really have the effect of ensuring that the employer will not harass another young woman in the workplace in the future.
Those who require advice in relation to workplace bullying and/or harassment or who need representation before the WRC can contact our Adrian Twomey.