Guidance to employers on what constitutes harassment and how to deal with it can be found in both the Employment Equality Acts 1998-2015 and in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI No 208 of 2012). Both legal instruments are available online on www.irishstatutuebook.ie. The employer also has obligations to ensure a safe place of work and may face litigation under other pieces of legislation, including civil cases. These avenues will not be explored in this article.
The definition of sexual harassment under the Acts includes any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
The code of practice (SI 208 of 2012) which was prepared by the then Equality Authority is a lengthy but comprehensive guide for employers. It gives practical guidance on what constitutes harassment and sexual harassment, how it may be prevented, the procedure for dealing with complaints and how to prevent their reoccurrence. The code of practice is not legally binding on employers; however, it can be referred to in litigation under the Act and therefore it is a significant source of guidance. The Code states that sexual harassment and other forms of harassment can have “a devastating effect upon health, confidence, morale and performance of those affected by it”. It also outlines the adverse effect of harassment for employers including the effect on profits as a result of absenteeism, possible sick pay and loss of staff members. The provisions of the code of practice reinforce the seriousness of any incidents of this nature in the workplace and therefore the importance of employers’ obligations in this regard.
Scope of liability for harassment
The scope of employers’ potential liability is vast. The definitions under the Act are broad and the Acts also provide that the employer could be liable for harassment by the employer itself, by other employees, by clients, customers or other business contacts that the employee might reasonably come into contact within the workplace or in the course of their employment. It follows therefore that employer’s must do all that is reasonably practicable to implement safeguards to prevent harassment and address complaints or concerns expeditiously. In practical terms this means having an effective policy about harassment in place, that it is regularly communicated and that all staff receive training. In the event of a complaint arising, the employer must ensure that there is no further occurrence or adverse treatment of the complainant post event.
Cases of sexual harassment have resulted in significant awards of compensation. The Decision in the case of Ms A v the Board of Management, Secondary School in the South of Ireland (DEC-E2015-146) demonstrates this point and emphasises the obligations on employers to act once an employee registers concerns. This case centred on an incident that took place at a work colleagues’ wedding in March 2010 where an unwelcome sexual approach was made to the complainant Ms A, a teacher in the school, by Mr B, who was not an employee of the school but had a sporting connection to the school. Mr B subsequently became a staff member of the school in August 2010 despite Ms A raising prior concerns about his recruitment to the school. The Equality officer found that whilst the incidents that occurred at the wedding event were unrelated to the school it did provide ‘a contextual backdrop’ to this case. This event the Equality Officer found ‘changed the complainant’s life, causing her trauma and fear of Mr B that did not exist prior to that date and did not evaporate in the aftermath.’ After Mr B joined the school, the Equality Officer found that Ms A’s employer did not take reasonable and practicable steps to prevent or reverse further incidents of sexual harassment and it was found that she was subjected to threatening and intimidating behaviour. The complainant was awarded €39,204 in compensation for the sexual harassment and the employer’s failure to reverse the effect and €26,136 in compensation for the harassment on gender grounds.
The essential learning from this case is that where concerns or allegations are made by employees, the employer must do as much as it reasonably can to investigate the matter and prevent its reoccurrence. In an earlier case of sexual harassment of two female teachers by pupils, A Boys’ Secondary School v Two Female Teachers (Determination AEE/01/9), the Labour Court clarified the extent of this liability; ‘What emerges from these cases is that if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent the harassment from occurring or in reducing the extent of it, he/she will be directly liable for having subjected the employee to the harassment. As the Court understands the principle liability arises not from the existence of control but from the failure to properly exercise that control so as to protect the employee against harassment. To hold otherwise would be to confuse vicarious liability, which is strict, with direct liability, which depends on a causal link between the harassment complained of and some fault on the part of the employer.
It also appears to the Court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do.’
Accordingly, employers should be routinely auditing their policy ensuring that it protects employees and the mechanism for investigating complaints is effective and in line with best practice.
Sexual harassment by non-employees
An employer’s potential liability for the actions of its customers is clear from the case of A Worker v A Hotel (DEC-E2009-062). The complainant in this case had worked as a waitress in the respondent hotel. She was subjected to sexual harassment by a customer of the hotel bar; such harassment included him wrapping his hands around the employee in a sexual way. The customer and the general manager of the hotel were friends and there was a practice of this customer entering the hotel kitchen, which was where the harassment occurred. The complainant resigned in view of what she considered the unacceptable conditions of work imposed on her. In reaching his decision, the Equality Officer noted that the respondent had no policy in place to deal with harassment and awarded €30,000 in compensation for the discrimination suffered and the ensuing discriminatory dismissal. The Equality Officer remarked that the award was in recognition of the aggravating and stressful experience of the complainant due to the conduct of the respondent, first with regard to her experience of sexual harassment, and then in how the respondent handled the matter subsequently.
The case of Atkinson v Carty (2005 ELR1) illustrates the Circuit Court’s approach to serious sexual harassment by contractors. While this case is a number of years old now, it is worth highlighting as an example of an employer who failed to meet its obligations. The plaintiff was employed by the defendant as a legal accountant. At times she had to work with an independent contractor who provided accountancy services to the company. The plaintiff claimed that an unsavoury element commenced within her working relationship with the contractor when unsafe and unwelcome sexual elements began to occur. When the plaintiff employee complained to the managing partner he agreed to an independent investigation of her complaints, however, he ended up conducting the investigation himself. This had particular significance given the fact that he and the contractor were close friends. Delahunt J. found that the plaintiff had suffered serious sexual harassment. In the decision, it was noted that there were no adequate procedures in place, that the defendant company was responsible for the actions of the contractor and the purported investigation was so flawed that it exacerbated the problems. Delahunt J. found that the plaintiff was entitled to damages of €137,000 less a finding of contributory negligence of 25% on account of the plaintiff’s failure to act sooner.
Harassment that occurs offsite
As the festive season approaches and particularly where employers fund staff social nights out questions often arise regarding employers’ obligations to staff where incidents occur offsite. An example of one case involving sexually harassing text messages is the case of A Female Employee v A Recruitment Company (DEC-E2008-15). In this case, it was found that the complainant had been sexually harassed on a night out with work colleagues when she received a number of offensive text messages of a sexual nature from her manager’s phone. Following the night out, the complainant was too upset to return to work and she was further upset by the manner in which her employer dealt with her complaint. The employer did not have a policy for dealing with such complaints and the complainant stated that the grievance procedure was inadequate especially given that she would have to raise her concerns to her manager. The company terminated her employment shortly after learning that she was pursuing a case under the Employment Equality Acts. The Equality Officer found that the employer was vicariously liable for the actions of the manager on the social night out after work stating ‘….the complainant would not have been present had she not been employed in the respondent body’. The Equality Officer also found no evidence to indicate that the employer had taken any steps that were reasonably practicable to prevent sexual harassment occurring. The Equality Officer stated that it ‘appears to be that the respondent was unclear as to how to handle the complaint of sexual harassment. This was exacerbated by the respondent’s failure to have policies and procedures in place to deal with complaints made either formally or informally.’
In addition to the discrimination claim for which she was awarded €10,000, the claimant also succeeded in showing that her dismissal was a form of victimisation under the Act for which she was awarded €15,000 (both sums subject to the Courts Act interest rate from the date of referral of the claim). The Equality Officer also ordered the respondent to draft a policy in accordance with the Code, and for this to be communicated to staff and displayed in a prominent position in the respondent’s premises.
A more recent adjudicator’s decision of a Healthcare Worker v a Healthcare Organisation (ADJ-00004872) considered an employee’s dismissal for gross misconduct following an investigation into allegations of his sexual harassment of a work colleague. This incident had occurred late at night and into the early hours of the next morning after a work event. The employee was dismissed following an investigation and submitted a claim under the Unfair Dismissals Act 1977 to 2015. In his findings, the adjudicator rejected the claimant’s case that the employer did not have jurisdiction to investigate the matter. He further found that the decision to dismiss, as opposed to a range of other possible sanctions, was within the band of reasonableness for an employer in the Health/Social care sector. His claim of unfair dismissal was not upheld.
A willing participant?
Employers have often sought to rely on a defence that the complainant was a willing participant in sexual banter or actions in the workplace. This cannot be a defence as outlined in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI No 208 of 2012). In the earlier case referred to of A Female Worker v A Recruitment Company (DEC-E2008-15), the employer submitted that the complainant was someone who has engaged in explicit sexual banter with other employees in the respondent company and had a casual sexual relationship with at least one employee during her time in the respondent’s company and further submitted that ‘the complainant’s reaction to the texts is inconsistent with her character and demeanour’. Even in situations where the complainant has participated in the actions in question, this can be irrelevant in deciding whether the complainant was sexually harassed. The Labour Court dealt with this argument in A Company v A Worker (AEE/00/1 No. 018) whereby the Court accepted that there was some element of the complainant being a willing participant in sexual banter, however, it found that the treatment the complainant received and the atmosphere that was directed towards her to be totally unacceptable.
Responding to complaints effectively
More often it is not the action complained of but the way in which the employer deals with the issues that can affect the outcome of a case under the Employment Equality Acts. Accordingly, if an employer receives a complaint of harassment, it is very important to recognise the seriousness of the situation and to act appropriately and promptly. As soon as an employer is on notice of a potential issue, every aspect of the employer’s response and subsequent actions will be considered should the issue escalate to a legal claim. There is an allowable defence to harassment claims contained in the Employment Equality Acts, which is that the employer took such steps as were “reasonably practicable” to prevent its occurrence. It is clear from case law and the Code of Practice that what is generally expected of employers to successfully defend themselves against liability for harassment includes:
• having relevant up-to-date policies in place;
• communicating these effectively to staff and entrants to the workplace;
• proactively addressing complaints of harassment in line with best practice and company policy
• ensuring that the workplace is an environment free from practices that could be considered to be of a harassing nature.
The case of Ms S. v A Named Organisation (DEC-E2006-025) illustrates the benefit of having a policy in place to deal with complaints. The complainant alleged that she was sexually harassed by a senior colleague over a period of six years. The Equality Officer, who heard her claim, found on balance that the respondent’s version of events was more credible and that the complainant had failed to establish a prima facie claim of discrimination. The Equality Officer was satisfied that the internal investigation carried out by an investigator appointed by the respondent was conducted in an appropriate manner. The complainant’s claim of victimisation as a result of her allegations also failed.
The Labour Court has also made it clear in a number of cases that the presence of a policy in and of itself is not enough and that further pro-active steps are expected from employers. It is prudent for employers to ensure that their own policies are in line with the relevant code of practice to ensure that fair and effective procedures are followed. In reviewing their policies, employers should look to the Employment Equality Acts for guidance and the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI No 208 of 2012).
Effective management to prevent victimisation of employees who have raised complaints, threatened to take claims or supported a complainant is also essential. It is clear from a broad range of decisions that claims of victimisation can be quite costly for employers. To avoid this, an employer should ensure that the employee suffers no adverse treatment as a result of raising an employment equality concern. Training is essential in this regard.
Sexual harassment and other forms of harassment can have a significant and detrimental impact in the workplace. It is essential for employers to be mindful of their obligations under the Employment Equality Acts 1998 to 2015 to both prevent and address complaints that are brought to their attention. Regular review of employer policies is equally important along with consistent communication about what is acceptable and appropriate behaviour in the workplace. Complaints of sexual harassment, or indeed other forms of harassment, should always be dealt with seriously and expediently. Regular training and communication on what is appropriate and professional work behaviour in the workplace is also essential.
Ibec members should contact their Ibec advisor in relation to how to handle an issue on 01 6051500 or for training enquiries contact management training on 01 6051645/6051675.
Monday, 20 November 2017