A CARE ASSISTANT SUPERVISOR V A NURSING HOME[1]
On the 27th July 2020, the Workplace Relations Commission [‘WRC’] found a nursing home vicariously liable for the actions of 93 year old resident, awarding 3 separate employees a total €150,000 following allegations of sexual harassment.
BACKGROUND
The three complainants were employed as care assistants at a nursing home. Following a transfer of undertakings in 2017, all three members of staff were retained. The complainants noted that over several years they had all been subject to sexual harassment by a 93 year old resident of the nursing home, ranging from physical inappropriate touching to foul language, which had the effect of undermining her dignity and creating an intimidating and hostile environment.
Prior to the takeover of the nursing home, all three nurses raised this matter internally at a board meeting. Despite voicing these concerns, no action was taken by management to prevent the ongoing issues in order to protect the employees in question. On the 7th January 2018, the three complainants whilst attempting to provide care to the resident, were subject to foul language and sexual abuse – with the resident even grabbing the crotch of one of the nurses.
As a result, a clinical nurse manager was called to the residents room but she failed to provide any proper assistance. Instead, the nurse manager submitted a complaint of neglect to the director of nursing about the complainant’s.
Arising out of the complaints submitted by the nurse manager, all three members of staff were suspended with pay on the 9th January 2018 pending the outcome of an investigation. The nurses were then interviewed on the 17th January in line with the HSE Trust and Care Policy. The outcome of the investigation resulted in the recommendation that matters be escalated to a disciplinary hearing. All three nurses remained on suspension until their dismissal on the 18th December 2018, where it was held on the balance of probabilities that maltreatment of a resident had taken place.
During the hearing, the nurses submitted evidence, that the director had failed to deal with the complaints of sexual harassment and were told to “grow up” and that the resident “could do as he liked”. Further, it was submitted in evidence that the resident routinely went to the local pub six days a week, even storing alcohol in his locker.
Furthermore, at the time of the transfer in 2017, assurances were given by the director that the resident would be assessed to determine his suitability and whether he may need to be “moved on”.
The nurses representatives submitted a number of points in support of their claims, not limited to the following:
- The nursing home failed to take any effective steps to prevent the residents alcohol fuelled aggression and sexual harassment of the complainants
- The residents alcohol consumption should have been controlled and medical assistance obtained earlier
- Counselling and psychiatric intervention should have been provided to the resident
- The resident could have been dealt with by a male carer
- The resident could have been moved to another facility
The nurses were also able to provide 5 other witnesses in support of the allegations of sexual harassment by the resident, which was alleged to have occurred on a daily basis.
Notwithstanding the complaint of sexual harassment, the nurses also respectively lodged victimisation complaints, stating that the nursing home victimised them unfairly for having raised complaints of sexual harassment on the 7th January 2018 and also in May 2018 through their solicitor[2].
In addition, the nurses also claimed that they were penalised for having made a complaint about threats to their health and safety at work and failing to take appropriate steps to protect the employees[3].
In response, the Nursing Home denied the complaints raised, citing the fact that the resident in question required complex care needs, in that he was confined to a wheelchair and was bed bound. Furthermore, he was incontinent, required assistance when feeding and was blind in one eye, with severe cataracts in the other, significantly impairing his vision. This was verified by a medical report. As such, the nursing home submitted that due to the physical impairments, he was unable to engage in physical conduct as pleaded. It was however accepted that the resident had an alcohol dependency but denied that said resident has unlimited access to alcohol.
Of particular note, the Nursing Home denied the communication of sexual harassment took place on the 7th January 2018. Equally, if complaints of sexual harassment were to arise, male carers were on hand to take over, as per protocol.
The nurse manager gave evidence that the resident was not problematic and that he was not abusive on the 7th January 2018 as stated by the complainant’s. The nurse manager also admitted to giving the resident alcohol that morning.
ADJUDICATOR’S DECISION
The adjudicator in her decision made reference to the resident’s care plan, which contained numerous comments regarding his alcohol intake and his behaviour and use of language towards members of female staff. In fact, it reported an incident under the heading “nursing intervention”, that two staff were required to attend residents needs as he was less likely to use inappropriate sexual language when two staff members were present. This care plan was signed by the resident and dated the 28th May 2017.
The adjudicator also found the evidence submitted by the nurses to be more credible than that of the nurse manager, noting that there appeared to be history between the members of staff. She further stated that the nurse manager, as confirmed through evidence, was annoyed to be called to the room on the 7th January 2018 in the first place.
When evaluating the duty of care owed by the Nursing Home the adjudicator noted:
“I accept that the Respondent had to balance its obligations to the resident and its employees and that dealing with challenging behaviour is a fact of life with certain nursing home residents. However, in this case the Respondent’s focus was only on the resident which is commendable as towards the resident but not when it is at the expense of its obligations to the Complainant and her co-workers.”
Furthermore, the adjudicator reaffirmed that it is irrelevant whether the harasser did not intend to harass the victim or that the harasser believed the behaviour was mere workplace “banter or frolic”. Equally that there is no requirement that the conduct itself be reasonably capable of being viewed as harassment. As such, the adjudicator deemed the actions of the residents sufficiently serious, and the complainants had established a premia facie case of sexual harassment[4].
As noted in the decision, the first component of a defence, the employer must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the sexual harassment occurred and that the policy was effectively communicated to staff. In this instance, whilst a generic policy was put in place, no training or information sessions was conducted whatsoever. Moreover, the type of behaviour outlined on the residents care plan, was the exact type of behaviour the internal policy aim to prevent.
As a result the adjudicator held there was a total failure by the Nursing Home handling of the nurses complaints and to reverse the effect of the sexual harassment suffered by the complainant’s. As such, the Nursing Home was found to have discriminated on the grounds of gender and that the sexual harassment constituted discrimination. In addition, the adjudicator accepted that the nurses were subjected to adverse treatment for having raised complaints of sexual harassment, and therefore deemed the Nursing Home to have victimised them. Lastly in regards to the complaint of penalisation, the adjudicator noted:
“I am satisfied, as a matter of probability, that, were it not for the Complainant calling the nurse manager to the resident’s room on the 7th January 2018 and her complainant about his behaviour towards her, she would not have been suspended from work on the 9th January 2018 and ultimately dismissed on the 18th December 2018.”
As such the adjudicator awarded each complainant €10,000 for their claim of victimisation; €10,000 for their claim of penalisation and €30,000 for their claim of sexual harassment.
KEY TAKEAWAYS
- The employer will be vicariously liable for the acts of employees, agents and/or third parties in regards to sexual harassment[5]:
- It prudent to have a sexual harassment policy in line with S.I. No. 208/2012 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012:
- Ensure that employees are trained aforementioned policy and educated on sexual harassment within the workplace:
- If an employer receives a complaint of sexual harassment, they should:
- To actively deal with the matter without delay:
- Suspend the accused – if there is an immediate threat to the complainant or there is a possibility of parties interacting with one another within the workplace:
- Investigate the matter in line with the applicable policy, paying acute attention to both parties involved. If investigated poorly, may give rise to a constructive dismissal complaint or personal injury claim by the complainant or likewise for the accused. A duty of care is owed to both parties:
- Ensure that all evidence being relied upon is furnished to the accused prior to investigation to allow appropriate preparation for cross examination of evidence:
- Do not allow the accused to cross examine the complainant:
- It is a defence for an employer to be able to demonstrate that they took reasonable practicable steps in order to prevent sexual harassment within the workplace. Equally, there is an obligation on the employer to prevent the victim from being treated differently in the workplace or in the course of the victims employment, to reverse its effects.
[1] ADJ-00015046; ADJ – 00015040 ; ADJ – 00015039
[2] Section 74 of the Employment Equality Acts 1998 – 2018
[3] Section 27 of the Health, Safety and Welfare at Work Act 2005 – 2020
[4] Section 85A of the Employment Equality Acts 1998 – 2018
[5] Section 14A of the Employment Equality Acts 1998 – 2018
