THE INDUSTRIAL TRIBUNALS 

CASE REF:	386/13  

CLAIMANT:			X

RESPONDENT:		Y

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of sexual harassment is dismissed.

Constitution of Tribunal:

Chairman:		Mr B Greene

Members:		Mr D Hampton
			Miss F Cummins

Appearances:

The claimant appeared in person.

The respondent was represented by Mr T Warnock, of counsel, instructed by Reavey and Co Solicitors.

Sources of Evidence

1.	The tribunal heard evidence from the claimant and from a witness on his behalf.  The tribunal heard from 11 witnesses on behalf of the respondent.  The tribunal also received four bundles of documents amounting to some 363 pages, an agreed chronology and written submissions from both parties.  

The Claim and Defence

2.	The claimant claimed that he had been sexually harassed by a third party while he was working in his employer’s premises.  The respondent denied the claimant’s claim in its entirety.

The Issues

3.	The agreed issues for determination were:-

	(1)	(a)	Was the claimant sexually harassed contrary to the Sex Discrimination (Northern Ireland) Order 1976 (as amended)?

		(b)	If so, did the respondent fail to take such steps as were reasonably practicable to prevent the harassment from occurring in accordance with the Sex Discrimination (Northern Ireland) Order 1976 (as amended)?

		(c)	If liability is established by the claimant, did his behaviour contribute to the sexual harassment taking place and if so, to what extent?

		(d)	If liability is established by the claimant, what relief is the claimant entitled to pursuant to Article 63 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended)?

		(e)	Have these proceedings been brought unreasonably and vexatiously by the claimant?

(2)	Factual Issues

(a)	Has the claimant been sexually harassed on the respondent’s premises prior to the alleged act which is the subject matter of these proceedings?

(b)	If so, how many times and was each incident reported to the respondent?

(c)	Was the claimant sexually harassed by a customer on the respondent’s premises on 19/20 January 2013?

(d)	When did the claimant report the alleged act of harassment?

(e)	What was the reason for the delay?

(f)	Why did the claimant resign?

(g)	Did the claimant invite member(s) of the public to approach him at work through an explicit gay website?

(h)	What steps did the respondent take to ensure the claimant’s safety at work?

(i)	Was there an issue of customers sexually harassing members of staff?

(j)	If so, what did the respondent do to remedy the problem?

	(3)	At a Case Management Discussion on 7 May 2013, following an application by the claimant, anonymity was made pursuant to Rule 49 of the Industrial Tribunals (Constitution Rules of Procedure) Regulations (Northern Ireland) 2005.  On foot of that the parties agreed a code in relation to the identification of witnesses and the place where the claimant worked.  That code has been provided to the tribunal.  

Findings of Fact

4.	(1)	The respondent employed the claimant as a part-time floor staff member in a nightclub premises from 6 October 2012 until 27 January 2013.  The respondent premises can and frequently does have in excess of 600 patrons on a Friday and Saturday night.

	(2)	In early to mid-December 2012 the claimant alleges that a member of staff, Mr P, attempted to kiss him against his will.  The member of staff was in the nightclub as a customer and not working at that time.  

	(3)	On 23 December 2012 a customer, Mr O, remonstrated with the claimant because he alleged the claimant was in contact with and was making unwanted advances towards Mr O’s boyfriend.

	(4)	On 25 December 2012 an incident occurred in the premises involving two male members of staff which was subsequently described as an incident of horseplay.  The incident involved physical contact between the two employees during which sexual intercourse was simulated.

	(5)	A meeting occurred on 28 December 2012, arranged following a complaint made by the claimant, regarding the incident at paragraph 4(4) above, that one member of staff had acted inappropriately towards the other member of staff.  That matter was investigated by the manager Miss C.

	(6)	Mr O was excluded from the club premises for one month on 29 December 2012 for accosting the claimant on 23 December 2012.

	(7)	Whilst on duty on 11/12 January 2013 a customer proposed to the claimant that he engage in a “threesome”.  The claimant rejected this proposal.  

	(8)	The claimant alleged he reported it.  The respondent denied that he reported it.  The tribunal is not persuaded that he reported this matter.  In so concluding the tribunal had regard to the fact the claimant is not always an accurate historian and there was not any evidence to support the claimant’s claim to have reported the incident.

	(9)	On 13 and 17 December 2012 incidents, capable of constituting sexual harassment, occurred involving two members of staff, Mr B and Miss N.  As these incidents were between employees they are not relevant for the purposes of this claim.

	(10)	A customer of the respondent club, Mr I, had made contact with the claimant through an application called Grinder.  Grinder is an application used by gay men to make contact with other gay men.  The motives of users for so doing vary.  The claimant had indicated, in that communication to Mr I, that the next time Mr I was in the club that he could greet the claimant.

	(11)	On the night of 18/19 January 2013, when the claimant was on duty, Mr I was a customer in the premises.  He encountered the claimant in the course of the claimant’s toilet duties.  Mr I admits that he attempted to grab the claimant between the legs.  The tribunal is not persuaded that the claimant engaged in similar conduct with Mr I, despite Mr I having so stated in his evidence to the tribunal.  In coming to that conclusion the tribunal had regard to the report of the incident at the time when Mr I does not make any mention of the claimant having engaged in touching of a sexual nature of him.  He further indicated at the time that he was embarrassed, that he had misread the situation and he accepted that he had acted inappropriately.  Mr I was excluded from the respondent club premises the same night for his inappropriate behaviour.

	(12)	Neither is the tribunal persuaded, on the balance of probabilities, that earlier on 18/19 January 2013 an incident occurred on the stairs in which Mr I is alleged to have touched the claimant in the groin and his penis.  There is no record of that complaint having been made at the time nor did it appear to figure as the reason for the exclusion of Mr I from the club on the night.  

	(13)	The claimant alleges that on the night of 19/20 January 2013 during one of his two hours on toilet duty that night, though he cannot be specific during which hour, an incident had occurred.  He alleges that an unknown male forced him into a cubicle closed the door and raped him whilst in the cubicle.  He indicated to the tribunal that he had frozen during this assault and had not shouted nor made any resistance.  He was unable to identify the assailant.  

	(14)	The toilet cubicle is quite small measuring 3 feet 11½ inches  x  2 feet 5 inches.  The door to the cubicle opens inwards.  There are a number of cubicles in the toilet and a urinal.  The toilet is usually busy at this time but the claimant maintains the toilet was empty at the time of the assault.

	(15)	The respondent sought to cast doubt on the reliability of this account and submitted to the tribunal that the tribunal could not be satisfied that a rape had occurred.  

	(16)	Having considered the evidence on this matter the tribunal is not persuaded, on the balance of probabilities, that a rape had occurred.  In so concluding the tribunal had regard to the following matters;-

		(a)	After the alleged rape, on the night of 20 January 2013, the claimant left work, did not return and later the same night via a text message stated that he wanted to leave and work a month’s notice.  He did not mention the rape as a reason for his decision to leave his employment, though he did offer a reason, ie, he was isolated by other members of staff.

		(b)	In explaining his resignation the claimant has advanced 4 different accounts; that he was isolated by other members of staff; that a customer had tried to kiss him against his will; that a customer had forced him into a cubicle and attempted to kiss him against his will; and that he had been forced into a cubicle and raped.  

		(c)	There was a number of other aspects of the incident that seem to the tribunal to be surprising.  These include; that the claimant cannot recall which period of time in the toilet that the incident occurred, he having spent two hours on toilet duty but separated with other duties; that he did not report the incident to anyone on the night, despite the fact that he had made complaints about inappropriate behaviour by members of staff on other occasions most recently the night before; that he did not report the matter to the police; that he did not attend with his doctor until 30 January 2013 despite the fact that he had been raped by an unnamed assailant whose medical condition was, in terms of sexually transmittable diseases, unknown to the claimant; that he continued to do his work after the rape; that the claimant attended a meeting after his duty with Miss C and was apparently in good humour; that in reporting the rape to his GP the claimant got the date wrong; that he failed to attend the GUM clinic on 30 January 2013, as recommended by his GP, having contacted the GUM clinic and received an appointment for the same day; and that he did not attend the GUM clinic until 8 March 2013 when he was unable to give an accurate date of the rape.  

(d)	On 20 January 2013, after the alleged rape, the claimant met with Miss E as part of an investigation of a potential act of misconduct committed by the claimant earlier the same day.  The claimant participated in the investigation and the tribunal accepts that he did not appear in any way distressed nor to be suffering from the earlier incident of rape.  He alleges he was quite distraught at this time and had been crying earlier.  It is somewhat surprising that if he were in that frame of mind he did not seek the postponement of an investigatory meeting into a potential disciplinary issue against him.

	(17)	In the early morning of 20 January 2013 the claimant indicated his intention to leave his employment by way of a text to Miss C.  In the text message he extols the respondent nightclub as a place to work and particularly singles out for praise Miss C and Miss E.  He indicated that his reason for resigning was that he had been isolated by other members of staff.  He further said that he did not want anything done about it.

	(18)	On 26 January 2013, in a text message to Miss C, the claimant indicated that he had been forced into a cubicle by a customer and the customer had started kissing him while he pushed him away.  He described the customer as having assaulted him and added, “luckily that was it, it could have been a lot worse.”

	(19)	On a facebook entry on 26 January 2013 the claimant related an incident which occurred on 19/20 January 2013 where he alleges a customer had attempted to kiss him while he was speaking to another customer.  He further indicated that this incident, the fear that he might be accused of encouraging the incident, and the other reasons outlined in his message, ie, isolation, meant that he could no longer remain in the respondent’s employment.

	(20)	On 27 January 2013 the claimant met with Miss C to discuss his resignation and the reasons for it.  He alleges he informed Miss C about the alleged rape.  Miss C denies that he so informed her.  

	(21)	On balance the tribunal is not persuaded that he informed Miss C on that date about the alleged rape.  In so concluding the tribunal had regard to the lack of reliability to be placed on the claimant’s evidence in relation to this incident as he has given four different accounts of why he resigned.  On the other hand Miss C’s evidence, while challenged by the claimant, did not display any inconsistencies or contradictions.  

	(22)	The claimant subsequently lodged proceedings on 15 February 2013.  

(23)	He attended at the GUM clinic on 8 March 2013 in relation to the rape at which point he was not able to give an accurate date of the rape. 
 
(24)	He did not report the matter to the police until 4 July 2013.  He had not done so earlier because he said he was having difficulty coping with the events and did not want to be questioned about it by the police.  He finally changed his mind because he wished to bring closure to the matter, he told the tribunal.

The Law

5.	(1)	It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland to subject a man whom he employs to harassment (Article 8(2A) Sex Discrimination (Northern Ireland) Order 1976 as amended).  

	(2)	An employer is to be treated as subjecting a man to harassment where a third party subjects the man to harassment in the course of his employment and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so (Article 8(2B) Sex Discrimination (Northern Ireland) Order 1976 as amended).  

	(3)	The liability attaching to an employer under Article 8(2B) Sex Discrimination (Northern Ireland) Order 1976 as amended does not apply unless the employer knows that the man has been subject to harassment in the course of his employment on at least two other occasions by a third party (Article 8(2C) Sex Discrimination (Northern Ireland) Order 1976 as amended).

	(4)	A third party means a person other than the employer or a person whom the employer employs and it is immaterial whether the third party is the same or a different person on each occasion (Article 8(2D) Sex Discrimination (Northern Ireland) Order 1976 as amended).

	(5)	A man is subjected to harassment; 

(a) 	if he is the victim of unwanted conduct that is related to his sex or that of another person and the conduct has the purpose or effect of violating his dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him, or 

(b) 	if he is the victim of any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating his dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him, or, 
(c) 	where the victim has rejected or submitted to unwanted conduct of a kind already mentioned, the victim is treated less favourably than he would have been treated had he not rejected or submitted to the conduct (Article 6A of the Sex Discrimination (Northern Ireland) Order 1976 as amended).  

	(6)	Conduct shall be regarded as having the effect mentioned only if, having regard to all the circumstances, including in particular the perception of the man, it should reasonably be considered as having that effect (Article 6A(2) Sex Discrimination (Northern Ireland) Order 1976 as amended).  

The application of the law and the findings of facts to the issues

6.	(1)	As the tribunal is not persuaded that a rape had occurred on 20 January 2013 that cannot be an act of harassment for the purposes of the claimant’s claim.  

	(2)	The claimant pleaded in the alternative that if that were not accepted that he sought to rely on the incident involving Mr I on 18/19 January 2013 as constituting the incident of harassment.  This incident, whereby the claimant was grabbed between the legs by a customer without invitation and against his will, is capable of being an incident of harassment for the purposes of the Sex Discrimination (Northern Ireland) Order 1976 as amended.  

	(3)	In order that the claimant’s claim of harassment succeeds he must identify two previous incidents of harassment that have happened to him, done by third parties, which were reported to the employer, and that the employer had failed to take steps that were reasonably practicable to have prevented the third incident of harassment from occurring.

	(4)	The claimant relies on an incident in mid-December 2012 involving Mr P, an employee of the respondent, who allegedly attempted to kiss the claimant.  The claimant submits that as Mr P, at the time that the incident occurred, was in the respondent premises not as an employee but as a customer he is capable of satisfying the definition of a third party for the purposes of Article 8(2D) of the Sex Discrimination Order.  The claimant did not rely on any authority in support of that contention.  

	(5)	Having considered this matter the tribunal rejects the claimant’s submission as the wording of the statute is clear and unambiguous and as Mr P was indeed an employee at the time that the incident is alleged to have occurred.  As this incident is not a qualifying incident for the purposes of this claim it is unnecessary for the tribunal to determine whether the incident was reported or not, about which the parties adopt opposing views.  

	(6)	The second incident upon which the claimant relies is an invitation to a “threesome” on 11/12 January 2013.  This is capable of fulfilling the definition of harassment under the Sex Discrimination Order and the claimant asserts the invitation came from a customer and not from a member of staff and there is no contrary evidence before the tribunal.  The parties are at complete disagreement as to whether this matter was reported or not, the claimant asserting it was reported, the respondent denying that it was reported.  On balance the tribunal is unable to accept that this matter was reported as the claimant has been found to be an unreliable witness whereas, the respondent’s witnesses gave their evidence on the relevant matters without contradiction and were substantially consistent in what they said.  This incident therefore cannot be a qualifying incident of harassment.

	(7)	The incident where Mr O accosted the claimant, because he believed he was making advances towards Mr O’s boyfriend, does not satisfy the test in Article 6A of the Sex Discrimination (Northern Ireland) Order 1976 as amended.  The conduct, ie, the remonstration with the claimant was not related to the claimant’s sex nor was it of a sexual nature.

	(8)	As the claimant has not been able to show that there were two previous incidents of harassment reported to the respondent prior to the incident involving Mr I he has not satisfied an essential requirement of the ingredients of a claim for sexual harassment.  It is therefore unnecessary for the tribunal to decide whether there were steps that could be taken by the respondent that were reasonably practicable. 

(9)	Accordingly the claimant’s claims are dismissed in their entirety.

(10)	It emerged in the course of the hearing that the respondent company was not as diligent as it should have been in its note-taking and/or its recording of complaints.  However the tribunal is not persuaded that these deficiencies were such as to undermine any of the findings or conclusions made above.

(11)	The tribunal is not satisfied that the proceedings were brought unreasonably or vexatiously.  The tribunal notes that the respondent’s written submission makes no reference to this.

Chairman:

Date and place of hearing:   5-9, 12, 15 August 2013 and 2 September 2013, Belfast.

Date decision recorded in register and issued to parties: