Woman receives €40,000 after employer failed to address sexual harassment complaint

The operator of a nursing home must pay a former employee 40,000 euros in compensation. She had resigned from her job because the operator had not dealt with allegations that a colleague had been drunk and had sexually harassed her.

The Workplace Relations Commission (WRC) ruled that Costern had discriminated against a nursing assistant in relation to the sexual harassment she experienced in the workplace, contrary to the Employment Equality Act.

The WRC also found that the woman had been constructively dismissed by the company by forcing her to leave her job because the company had failed to address the concerns she had raised with management.

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Costern is a holding company of the Trinity Care nursing and care home group, which operates facilities in Dublin, Meath, Kildare, Louth, Wicklow, Kilkenny and Cavan.

The company had argued that it had taken the complainant’s allegations very seriously and investigated them carefully.

It was said that there was “simply not enough evidence to substantiate the allegations”.

Costern also argued that the company could not be held vicariously liable for an employee’s conduct because it had clear policies on dignity and respect in the workplace, which stated that any sexual harassment would be considered serious misconduct that could lead to dismissal.

A representative of Costern claimed that all reasonable steps had been taken to ensure that harassment did not occur in the workplace and that all employees knew how to raise a complaint.

The unnamed nurse told the WRC that she had reported to her supervisor that she had been physically and verbally harassed at work by a male colleague.

She claimed that the same person also went to work drunk.

The woman said she reported several incidents of drunkenness involving her son to her supervisor, but was told that evidence was needed to support her allegations.

According to the WRC, the HCA was informed that their complaint could not be accepted because no other employee was willing to come forward.

Her male colleague was subsequently transferred to the same ward as the complainant in December 2022, where patients required more intensive care.

The woman claimed her supervisor told her not to take a video of a bottle of rum she found in her colleague’s backpack as he went into a locker room because she feared he was drunk on the job.

She escalated the complaint by sending an email to a manager three days later.

The HCA said her colleague put his hand on her bottom on February 24, 2023 while they were both assisting a patient.

When confronted, he claimed that he had only touched her so he could pass by and denied having touched her inappropriately.

However, the plaintiff insisted that it was an intentional sexual act.

When she reported the incident to her supervisor, she was advised to escalate her complaint to her manager.

She also complained that she had been touched inappropriately several times by the same colleague.

In a formal complaint dated March 9, 2023, the woman claimed she received “some unwelcome hugs” from her colleague.

According to the WRC, no safety precautions were taken during the investigation.

The woman said Costern continued to assign them both to the same shifts despite the concerns she raised, leaving her in a state of distress, anxiety and fear for her personal safety.

On May 5, 2023, HCA was informed that its sexual harassment complaint had been dismissed.

Her appeal against this decision was unsuccessful.

The woman claimed that she had been placed in an unbearable situation due to the further classification and the proximity to the alleged perpetrator.

She stated that she had no choice but to leave her job because her work environment had become oppressive and unsafe and resigned on August 3, 2023.

Brian Dalton, WRC adjudication officer, said the evidence presented by the HCA was compelling and led to the conclusion that sexual harassment had occurred.

Mr Dalton said the publication date of Costern’s harassment, sexual harassment and dignity in the workplace policy was November 2023, after the complainant’s allegations.

He ruled that the company had failed to meet its burden of proof and had failed to demonstrate that it had taken reasonable steps to prevent the harassment.

The WRC said no evidence had been presented that Costern had “comprehensive, accessible and effective strategies focused on prevention, best practices and remedial action” at the time of the alleged incidents.

“There is a lack of evidence that the company has been proactive and communicated its policies,” Dalton said.

He also ruled that the HCA had been constructively dismissed.

“She could reasonably assume that nothing would change and that inappropriate touching by a co-worker would occur in the future with little consequence,” Dalton said.

However, the WRC ruled that the nurse had not been discriminated against because she had complained about a colleague.

It awarded the plaintiff 25,000 euros for discrimination in connection with sexual harassment, which had had “very profound and damaging effects”.

The WRC also ordered Costern to pay her an additional EUR 15,000 for constructive dismissal because his conduct had been inappropriate and breached the duty of mutual trust owed to Costern.

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