A gay creche worker who said she was effectively “outed” at work after feeling “pressurised” to admit to a colleague she had “no interest in men” has secured €5,000 in compensation for discriminatory harassment.
The Workplace Relations Commission found that the complainant was not intentionally targeted on the basis of her sexual orientation but noted she was “deeply upset” over her colleague’s questioning.
It also found there was no evidence of sexual harassment training at the creche “outside of producing policies for staff to read”.
At first, the worker, a gay woman, said she had “no interest in boyfriends”, but when her colleague continued her questioning, she said she had “no interest in men”, the complainant told the tribunal.
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Before this, she had told “nobody” at work about her sexual orientation and it had been “very difficult” to tell her parents, she said in evidence.
Neither the creche nor the worker were identified in a fully anonymised decision published by the WRC on Tuesday, which made a finding that she was subject to unlawful discrimination on the basis of her sexual orientation in the form of harassment.
It rejected a second complaint of victimisation over an alleged cut to the complainant’s rostered hours.
The complainant said she had to go to the bathroom to cry after the conversation with the other worker, referred to as Ms A, on 21 October 2021.
After Ms A seemed to “persist” with discussing her family later in the day, the complainant said she became “terribly upset” and had her mother come to bring her home and reported the matter to her manager, Ms C, stating that she had been “outed” at work.
Ms C suggested at a meeting the next day that if the complainant did not want people to know her sexual orientation that “maybe she “should have lied”, the complainant said – a claim later denied by the manager in her own evidence.
The complainant said she turned down her boss’s proposal for a group meeting to avoid “confrontation”.
The week after the original incident, Ms A again started a discussion with her “asking why it was not acceptable”, the complainant said, adding that she had to tell her colleague directly that “what she had said was disrespectful”.
The manager, Ms C, said the staff handbook for the creche clearly stated sexual harassment “would not be tolerated” – but accepted under cross-examination that she thought at the time that a single incident “would not be considered as harassment”.
In her own evidence, Ms A said she had asked the complainant about her weekend and “whether she had a boyfriend”.
She did not agree that she was “pressurising” the complainant, nor that her conduct was harassment.
The complainant’s barrister, Lorna Madden BL, who appeared instructed by Killian O’Mullane of Murphy English and Co Solicitors, said that Ms A “did not understand her conduct was wrong” and that the manager’s response had undermined the policy “by a lack of understanding on how to implement [it] “.
Denying discrimination and harassment in pleadings on behalf of the creche management, solicitor Valerie Morrison of Peninsula Business Services argued the complainant had not been subject to any less favourable treatment because of her sexual orientation and had failed to make out a prima facie case.
“The complaint of harassment was dealt with sensitively and was fully investigated in accordance with the Respondent’s policies and procedures and was concluded at the complainant’s behest,” Ms Morrison said in submission.
Changes to the staff roster had not meant any reduction in the complainant’s terms and conditions of employment, she added, as the worker was always part-time relief staff, Ms Morrison added.
“Any changes to the complainant’s work were based on the business needs of the creche in difficult times caused by the pandemic,” she submitted.
“Ms A came across as a genuine and honest witness and I find that it was not her intention to target the complainant on the basis of her sexual orientation,” wrote adjudicating officer Thomas O’Driscoll.
He noted, however, “convincing” evidence from the complainant of being “deeply upset” that her colleague’s questioning “had effectively ‘outed’ her” at work as a gay woman.
Mr O’Driscoll wrote that Ms A had shown “a basic lack of understanding” of her employer’s harassment policy in her evidence and that there was no evidence of training at the creche “outside of producing policies for staff to read”.
Upholding the complaint of discrimination under the Employment Equality Act 1998, Mr O’Driscoll made an order for €5,000 in compensation to the worker – rejecting a second complaint of victimisation.