Ireland: An Employee Was Penalised by the Employer After Assault Complaints Awarded €20,000
Mr. Patrick O’Connor (the “Complainant”) claimed that his employer failed to act immediately and penalised him after he reported to his employer that he was physically and verbally assaulted by another employee. In particular, the Complainant claimed that, in late 2019, he was strangled with a seat belt by another employee and that he was verbally assaulted and threatened in July 2021 by the same individual. The Complainant indicated that it was not until the second incident that the Complainant reported the assaults to his employer, Wexford County Council. Initially, the Complainant spoke to two individuals internally about the incidents, one of whom submitted an incident report form for him. The Complainant also submitted a complaint in writing under the Dignity at Work policy on 29 July 2021. The Complainant received no response from his employer to this. The Complainant also submitted an incident report form but received no response from his employer to this either.
In evidence during the WRC hearing, although the employer did not contest that the Complainant spoke to two individuals internally, the employer indicated that the HR department did not receive the complaint dated 29 July 2021 until January 2022. The Complainant did not receive a response from HR until March 2022. The Complainant indicated that there was a full investigation into the matter in the summer of 2022, but the conclusion of the investigation was that his complaint was not upheld.
The Complainant gave evidence to the WRC that he suffered a detriment after making the complaint and cited numerous examples of this, e.g., certain duties being reduced or taken away, being left to work on his own with no direction, no longer being allocated hours to cover fellow employees out of work for illness or leave, and his overtime being withdrawn. The employer gave evidence to the WRC but had no supporting documentation that the Complainant was not deprived of his normal overtime. In the absence of supporting documentation from the employer, the WRC preferred the Complainant’s evidence.
Section 27 of the Act provides protection for employees against dismissal and penalisation. Penalisation under the Act include any act or omission by an employer that affects, to his or her detriment, an employee with respect to any term or condition of their employment. Section 27 of the Act sets out what penalisation includes, i.e., suspension, demotion, and transfer of duties, and what employers are prohibited from penalising employees for, such as acting in compliance with relevant statutory provisions and giving evidence in legal proceedings regarding the enforcement of the relevant statutory provisions.
The burden of proof in a claim of this nature is on the Complainant to establish, on the balance of probabilities, a “protected act” and a “detriment.” If both limbs are satisfied, the burden shifts to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.
Ultimately, the WRC found that the Complainant had established a protected act within the meaning of the relevant legislative provision and that this protected act was an operative consideration leading to the detriment suffered by the Complainant. The WRC indicated that it had no doubt that the detriment outlined by the Complainant during the hearing was because of the protected act. The WRC indicated that the allegations were extremely serious and should have been dealt with immediately. The WRC also suggested that, given the serious nature of the assaults, it is arguable that Gardaí should have been informed of the incidents.
In assessing the level of compensation to be awarded, the WRC considered the seriousness of the allegations, the employer’s failure to act quickly to investigate the allegations, and the detriment suffered by the Complainant after making the complaint, all of which, the WRC indicated, were at the most serious end of the scale.
Key Action Points for Human Resources and In-house Counsel
- Respond promptly to complaints made by employees under Dignity at Work policies.
- Initiate investigations quickly upon receiving complaints, particularly those containing serious allegations.
- Have a policy whereby complaint forms need to be provided to HR as soon as possible where the person receiving the complaint form is different from HR.
- Allegations of assault, both physical and verbal, will be treated as being at the serious end of the scale when considering compensation awards in cases of this nature.
- Bear in mind Section 27 of the Act and acts of penalisation towards an employee when any complaint is made by an employee.
- Bear in mind that, while penalisation claims under Section 27 of the Act are quite rare in practice, this case is nonetheless a reminder of the legal principles that will be applied by the WRC and the potency of such claims. It should also be borne in mind that there is no maximum compensation award for claims of this nature.