A GAY construction worker who was awarded €49,700 by an Equality Tribunal for sexual discrimination, harassment and victimisation has had his compensation almost halved following an appeal to the Labour Court.
The man, who claimed he had felt suicidal at one stage as a result of harassment because he was gay, said that after reporting what was happening he was instructed not to work at heights.
He also claimed he was subsequently forced to take unpaid sick leave as a consequence of advice received from a psychologist appointed by his employer.
The tribunal awarded him €14,700 for lost earnings as a result of discrimination, €10,000 for sexual harassment and €25,000 for victimisation.
The construction company appealed the tribunal decision to the court saying the total €49,700 award was equal to nearly two years’ wages after tax and was “totally disproportionate”.
It said no victimisation occurred and therefore there was no question of loss of earnings. It took all reasonable steps to deal with the situation with the man’s welfare foremost in its mind.
The man had joined the construction firm in 1996 and had been employed until 2006 when he was made redundant with 36 others shortly after returning from sick leave as the company was experiencing a downturn.
The court heard the appeal in Limerick in March and in a finding that has just become available, it found the decision to restrict the man to working at ground level did not amount to victimisation but was motivated by a concern for his health and safety, having regard to his psychological health at the time.
However, it did find the man was victimised by being sent on unpaid sick leave. The court considered it “extraordinary” that the company failed to discuss the psychologist’s report with the man or allow him or his medical psychological advisers to comment on it.
Rather, having received the report, the company “moved peremptorily” to remove the man from the workplace and “did so on 30 minutes’ notice”.
The court also found “there was an extraordinary delay of some five months” in having the man’s condition reviewed and this occurred only just before the redundancies “came into contemplation”. The treatment of the man “can be sharply contrasted to that of the perpetrator of the harassment against whom no form of disciplinary action was taken”.
The court said the company should pay €12,500 to the man for the distress and the effects of sexual harassment, a further €12,500 compensation for the distress and effects of victimisation and €1,090 in medical expenses.
The court also said the company should have policies on harassment and sexual harassment which are in accordance with the code of practice issued by the Equality Authority and it ensures that all staff are familiar with the policy.