It was recently reported that a female former employee successfully claimed sexual harassment against the Bank of Ireland.  In this article, we consider what employers can learn from the case.

The Tribunal found that, despite an independent report instigated by the Bank finding that the incidents complained of were not serious, the Claimant had in fact been subjected to serious sexual harassment.  It found both the Bank and the individual involved, “F”, liable for the harassment and awarded £18,000 as compensation for injury to feelings made up of a £14,000 award and £4,000 in interest.

The Claimant started work with Bank of Ireland on 11 May 2015, when aged 25, as a Business Services Advisor.   The perpetrator was aged around 50.  Both were based in the Bank’s offices in Belfast City Centre but did not work together.

After the Claimant commenced employment F would frequently approach the Claimant at her desk and make conversation with her about trivial matters which to the Claimant seemed unnecessary, particularly since they were not working together.

Subsequently the following occurred:

June 2015 – F gave the Claimant a floor plan of the office.  He was not asked to do so by any line manager or the Claimant and had done so after he had overheard a conversation between the Claimant and another female colleague.

July 2015 – F messaged the Claimant, saying “have you noticed that N looks over us every time we talk”.  The Claimant replied that she had not and would not care if she was but was concerned that F seemed to be under the impression that there was some friendship or relationship between them when there was not.

August 2015 – the Claimant was wearing her hair in a bun and F came over to her desk and remarked that her hairstyle was “really in fashion and that he had seen it on a website he was looking at”.  Later the same day he brought over to the Claimant an eight-page printout from the internet stapled together in a booklet of celebrity hairstyles and suggested she might want to try some of them out.

September 2015 – following the Claimant’s return from annual leave, during which she had been on holiday in Holland with her mother, F asked her had she had a nice time in Barbados.  F then went on to say “I seen your bikini photoshoot pictures and you are going to have lots of fan mail to catch up on from being away”.  She had told him she had no idea what he was talking about.  There were and are no such photoshoot or photos of the Claimant in her bikini.

During this period, F regularly came to her desk, when she was opening and sorting out company post, suggesting she was opening fan mail, which she felt was insinuating she was some sort of a celebrity.

In September/October 2015, when the Claimant and F were leaving work, F commented that they always seem to meet at the lift in the evenings, making the Claimant feel concerned that F was timing his leaving from work in order to be in the lift at the same time.

20 November 2015 The Claimant was to go out to dinner as a part of team night out.  She was in “dressier” clothes than normal and was wearing her hair down and styled.  Throughout the day, F made gratuitous personal remarks about her appearance and what she was wearing and, on one occasion, pulled her hair when walking past the back of her chair.

The Claimant told her line manager about this incident during dinner that evening.  When back at work, her line manager spoke to F’s line manager but the Claimant was not informed of any action to be taken.

On 26 November 2015, F emailed the Claimant a link to a picture of insect eating a carrot, which to the Claimant was suggestive.  F later came to The Claimant’s desk and apologised for sending her the email in error.  The Claimant made it clear that he was not to send her any more messages and that she did not want to talk to him at all.

The Claimant raised a verbal complaint with her line manager on 27 November 2015.  Following a discussion with HR, the Claimant’s line manager advised her that whether she wished to proceed formally or informally was up to her.   No information was provided to the Claimant on the Bank’s harassment policy and procedures.

F’s line manager spoke to F on 1 December 2015 to see whether he accepted or rejected what the Claimant had alleged against him.  At the meeting F apologised and stated that he would no longer interact with the Claimant in any way that could be construed as “friendly” and all interaction would be on a purely business basis.

The Claimant was then informed that unless for purely business purposes, F would have no contact with her. The Claimant stated that on the basis that F had been “spoken to” and that he would not continue with any non-business related communication (verbal, email or other), she would be satisfied to leave it at this and also understanding that if there was a re‑occurrence, a full investigation would be triggered.

F was advised of the outcome and that there was to be no repetition (accidental or otherwise) so that any contact with the Claimant in the future was to relate to business purposes solely.  F asked that the same also applied to the Claimant.

This was treated as a verbal warning, but it was not confirmed to F in writing or placed on his personnel file.

There were no further issues until June 2016, when there was an incident at a coffee machine. F stated that he had been listening to the Claimant’s telephone calls and that she was good on the phone with difficult customers.  The Claimant was concerned that F appeared to be starting to resume his earlier behaviour.

On 15 June 2016, R a female colleague of the Claimant and of a similar age who worked in a different Department but on the same floor as the Claimant, told her that F had been also bothering her for some time, had made repeated comments about her looks, regularly touched her on the arm and back and shortly before R had spoken to the Claimant he had whispered in her ear that she had looked lovely that day.  R reported this to her manager, who in turn spoke to F’s line manager, who in turn spoke to F informally. However, R did not want to make a formal complaint or receive an apology.

In July, F was reportedly drunk at work and sleeping at his desk, however management took no action.

On 4 July 2016 F came back to the office at 5.05 pm to retrieve a forgotten bus pass, but went to the Claimant’s desk and asked how she was keeping.

The next day the Claimant submitted a written complaint that she had been harassed by F and that F had received no formal warning for sexual harassment or being drunk at work.

Subsequently F was suspended from work and an investigator was appointed.  The Claimant went on sick leave stating stress.

The investigator did not uphold the Claimant’s complaint, finding that as the Claimant had agreed to an informal approach at the time of her first complaint, she could not subsequently criticise the employer for not conducting a formal procedure.   However the investigator did find that R’s report of sexual harassment by F should have been the subject of a formal investigation, despite her wanting to deal with it informally, in view of the previous reports of sexual harassment by the Claimant.   The bank had a duty of care to other staff to ensure no further repetition.

The Tribunal found disagreed with the investigator’s view of F’s conduct, found that the Claimant was the victim of unlawful sexual harassment and awarded compensation.

The conversation at the coffee machine was enough to satisfy tribunal of sexual harassment because of the earlier promise not to talk to her about anything that was not work-related.   The earlier incidents of harassment constituted a continuing state of affairs and this meant that the Tribunal could consider them even though the Bank argued that those incidents were complained about outside the Tribunal time limit of three months.

What can we learn from this case

1.     Record meetings and outcomes in writing

The Tribunal was critical of the Bank’s processes, in that the verbal warning issued to F was not confirmed in writing, and no notes were taken at meetings with the Claimant and F at the informal stages.

2.     The Equality Commission will publicise successful cases

The Equality Commission supported the Claimant in this case by representing her in Tribunal.  The Equality Commission has a policy of promoting successful outcomes in the media, including on TV and newspapers.  In this case the Claimant told her story on local news on tv and radio which naturally affects the reputation of Bank of Ireland

3.     Statutory defence

In a case such as this, an employer can escape liability if it can show that it took all reasonable steps to prevent the harassment occurring.   This is known as the statutory defence.  The Bank was unsuccessful in proving the statutory defence and so was vicariously liable for F’s actions.

The Tribunal noted that the Bank’s Harassment policy had been written in 2000, but not subsequently updated.

The Tribunal was critical that despite the issue of the verbal warning, F was not subsequently given training in the Harassment policy.  It was also critical that he had been provided with no training following a similar incident at the Bangor branch in 2009.  He was not given a copy of the policy until he was suspended.   Line management had also not been training in the Harassment policy.

The Tribunal will require steps to be taken before an act of harassment has taken place, in order for an employer to rely on the defence.

In this case the employer had not done enough to demonstrate that it had taken all reasonable steps to prevent the harassment taking place.  The lesson is to regularly review policies and ensure that staff and management are aware of the policies and the need to comply with them.

4.     Sometimes an allegation must be investigated even if the employee does not consent.

Whilst the Tribunal did not categorically state that the Bank should have formally investigated R’s complaint, it did find that its failure to investigate added to the reasoning that the Bank could not rely on the statutory defence.

The employer should investigate incidents of its own volition in certain circumstances even if the victim does not want to make a formal complaint

5.     Time limits

The Tribunal will extend time limits for Claimants if it is just and equitable to do so.  In this case it found that there was a continuing state of affairs meaning that incidents occurring more than a year before a claim was submitted could still be considered by the Tribunal.

Conclusion

It is extremely important that employers keep their anti-harassment policies up to date and that employees are provided with training in this area. It is also important that, if an incident is reported, that it is fully investigated and appropriate action taken.