A multinational company handed a new employee a questionnaire asking him to provide a “drag queen name”, which was then circulated to the entire office, while he was later subjected to a series of offensive comments about his sexuality by a senior manager, the Workplace Relations Commission (WRC) has found.
The company has been ordered to pay the worker €25,000 in compensation.
In the months which followed the questionnaire, the salesman told the tribunal, his direct superior – the country manager – subjected him to “offensive and degrading treatment” with comments referring to his sexuality.
The worker’s complaint of discrimination under the Employment Equality Act 1998 was upheld by the WRC in a anonymised decision published on Wednesday. The commission rejected the man’s further claims of constructive dismissal over the grievance outcome and of subsequent victimisation when the company sought to claw back money from him after he left.
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The complainant said in evidence that when a colleague asked at a working lunch in September 2021 about his background as a gay man growing up in the North, he explained that his father “did not take the news that [I] was gay very well”.
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He said the country manager interrupted as soon as he said it and remarked: “Well I mean, can you blame him?”
The country manager made further remarks to him about “mascara at the weekend” when he mentioned that his eyes were sore, the complainant said.
The complainant told the WRC that when he said he did not use mascara, the manager replied: “Too gay for make-up, is it? Do you like those bears?”
The complainant said the “bears” remark was “a reference to manly gay men”.
He also complained that the country manager addressed him and another colleague with the words “I’m back bitches”, which he regarded as “another dig at his sexuality”.
An internal company investigator who looked into the complainant’s formal grievance wrote to the complainant stating that “inappropriate language” had been used towards him – but that this was “not with the intent to cause offence to you and that [it was] in no way motivated by any personal view of your sexuality”, the tribunal was told.
“This behaviour was not indicative of discrimination or concerted effort on the part of [the country manager] or any of the respondent’s other employees to undermine or negatively impact the complainant,” the investigator concluded.
Des Ryan BL, instructed by LK Shields for the employer, argued that the company “appropriately supported the complainant at all material times” and had a “meaningful and well-devised set of policies in place to combat inappropriate behaviour”.
He said the company was entitled to rely on this as a defence to the discrimination claim and added that there was “no basis” to the complainant’s further complaints of constructive dismissal or victimisation.
In her decision, adjudicator Valerie Murtagh wrote that the complainant was “a very credible witness who gave cogent compelling testimony” and that he had established that he was subjected to “offensive comments ... which violated his dignity at work”.
She noted that after “very detailed probing” by the tribunal, the respondent admitted the country manager was given a final written warning as a sanction in connection with the grievance outcome.
“I am not satisfied that the outcomes of the grievance hearing were either adequate or comprehensive given the nature of the offensive comments and inappropriate language used,” Ms Murtagh said.
She said it was “difficult to reconcile” the final written warning with the investigation findings, which she said in any case did not accurately reflect “the gravity and seriousness of the harassment”.
“I do not accept the respondent’s contention that the language directed at the complainant was ‘banter’ and ‘a joke’,” she wrote, noting that the legal test on harassment set out in case law was a “subjective” one.
The “drag queen name” question “had the potential of violating an individual’s dignity and creating a hostile and intimidating environment as it did in the case of the complainant”, Ms Murtagh added.
She awarded the worker €25,000 for the effects of workplace discrimination.
However, Ms Murtagh rejected the discriminatory constructive dismissal claim on the basis that the complainant had not appealed the decision internally before going to the WRC and so had resigned “prematurely”.
She also rejected the claim for victimisation, finding that there was “no malicious intent” in the firm writing to the complainant stating that it wished to claw back an “overpayment” of €2,600 made to him during his sick leave.
