A hotel massage therapist who refused to see a female client who she said had purposefully exposed her chest has secured an award of €2,000 for sexual harassment.
Hospitality group Neville Hotels had submitted that “both women and men are normally massaged with their chest[s] uncovered” and suggested that the massage client had “incorrectly interpreted” an instruction.
However, in a decision published this morning, the Workplace Relations Commission (WRC) disagreed with the hotel group’s submission that the client’s conduct was not sexual in nature.
The group was found liable for the harassment on foot of a complaint under the Employment Equality Act 1998 by the worker, Vanessa Corral Fernandez.
However, the tribunal rejected a further allegation of discriminatory dismissal on the ground of race.
Both complaints had been denied by the employer.
Ms Fernandez said that on the day of the incident with the client, she left the woman in the massage room to undress and cover herself with a towel.
When she returned, knocking before coming in, she found the client with her chest exposed and went away – returning to find the same sight a second time, she told the WRC.
She then formed the view that this had been done by the customer “on purpose” and left again to inform management.
While she was gone, she said she was aware the woman came out of the massage room looking for her, remaining in a state of undress, Ms Fernandez said.
The spa manager went into the room and asked the customer to “cover herself” before asking Ms Fernandez to carry out the treatment, the complainant said.
Ms Fernandez dsaid she wanted the guest “blacklisted” and refused to give the massage, with her manager stepping in to do it instead.
However, the complainant said she was then the subject of a complaint by her manager lodged the following day.
When Ms Fernandez herself made a complaint, the firm’s HR department called it a “very serious matter” and urged the complainant to come in and speak to a manager so that the “appropriate action” could be taken.
Ms Fernandez, who represented herself before the tribunal, wrote in her complaint: “My emails to HR were ignored [for] weeks and I never was answered after I complained [that] a female woman insisted in exposing her body to me.”
“If you feel you need to report this incident to the guards, we will support you as your safety and wellbeing is important,” the HR team’s response read.
Denying discrimination on any ground, the hotel’s barrister Barry O’Mahony BL told the tribunal that the hotel “offered to involve the police and offered immediate support”.
“She did not take them up on any of these offers,” Mr O’Mahony submitted.
The hotel’s position was that “both women and men are normally massaged with their chest[s] uncovered” and suggested that the massage client had “incorrectly interpreted” an instruction.
That error “could not constitute sexual harassment”, it was submitted.
In his decision, published on Wednesday, adjudicating officer David James Murphy wrote that the hotel group’s submissions on this point “invite me to come to the conclusion that the client’s conduct was fundamentally not sexual in nature”.
“I disagree,” the adjudicator wrote.
He decided that the nature of Ms Fernandez’s work, along with the partial nudity and physical contact involved, left her “more vulnerable to potential sexual harassment, specifically because that sexual harassment could be advanced under the guise of a misunderstanding or error”.
“In such an environment it is important that an employer relies on their workers’ judgment,” the adjudicator added.
He referred to the equality legislation defining harassment as conduct with the “purpose or effect of violating a person’s dignity” – and put emphasis on the word “effect”.
“The complainant believed that the client was deliberately exposing herself to her and that this was an abusive act rather than a misunderstanding. I am satisfied that this act constituted sexual harassment,” Mr Murphy wrote.
He added that Neville Hotels had failed to show it was “mindful” of the working environment for its spa staff and the risks involved with the work, noting that the hotel’s harassment policy seemed to have worker-on-worker harassment as its focus.
Mr Murphy also criticised the response of Ms Fernandez’s line manager for “remonstrating and complaining” about the worker, which he said made it clear there was a lack of “appropriate training and leadership on the ground to deal with sexual harassment”.
“While the respondent’s HR team responded professionally and properly, this was after the fact,” Mr Murphy wrote.
He upheld Ms Fernandez’s sexual harassment claim and awarded her €2,000 in compensation.
However, in rejecting the complaint of discriminatory dismissal, Mr Murphy ruled that the complainant’s later dismissal on probation had been on the basis of a difference of opinion between employer and employee on the service being provided.
Ms Fernandez “appears to have viewed her role as that of a healthcare professional”, while the hotel saw her job as “facilitating client relaxation”, Mr Murphy wrote.
One customer was said to have cut short their massage over “unsolicited health advice” from Ms Fernandez while another was said to have done so after an argument about drinking coffee before the appointment, the tribunal was told.