Harassment and Sexual Harassment in the Workplace

Under the Employment Equality Acts 1998-2015, henceforth referred to as ‘the Acts’, employers have a positive obligation to prevent harassment and sexual harassment in the workplace.

The Distinction between Harassment and Sexual Harassment:

The nine grounds of discrimination which are prohibited pursuant to the said Acts are as follows:

Gender;

Civil Status;

Family Status;

Sexual Orientation;

Age;

Disability;

Race;

Religious belief, and

Membership of the Traveller Community.

In accordance with the Acts, harassment is “unwanted conduct” in respect of any of these discriminatory grounds. Harassment based on any of these grounds within the workplace will be deemed a form of discrimination.

Unwanted conduct “has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” Whereas, distinctly, sexual harassment refers to “unwanted verbal, non-verbal or physical conduct of a sexual nature.”

Obligations of the Employer:

Employers are under a duty to ensure that they have adequate and up-to-date policies and procedures in place to deal with and prevent harassment taking place in the workplace. It is crucial that these policies are clear, informative and are updated regularly. Appropriate training should also be provided to staff members in order to ensure that all employees are aware and understand the policies and procedures which are in place. An effective grievance and complaints procedure must also be implemented by the employer.

The Code of Practice on Sexual Harassment and Harassment at Work provides practical guidance to employers and employees in relation to the prevention of both harassment and sexual harassment in the workplace, and further suggests appropriate means of implementing procedures to effectively deal with same in the unfortunate event that they do take place.

What constitutes harassment:

The following is a non-exhaustive list of possible perpetrators of harassment or sexual harassment:

Work Colleague;

Manager;

An employee in a superior position;

Client;

Customer;

Business contact.

Harassment at work does not necessarily have to take place on the physical grounds of the work premises. The offence may take place at a training course, a work excursion, a work-related social event or indeed any event connected with one’s employment. Harassment which takes place in any of these instances will qualify as work-related harassment. Both a single incident and repeated behaviour will suffice to qualify. Additionally, the offence may be targeted against an individual employee, or conversely a group of employees. The scope is quite wide in relation to harassment.

Bringing an Action:

If one seeks to initiate a complaint for either harassment or sexual harassment, they must satisfy a two-limb test in accordance with Section 14A of the Equality Act 2004;

(1) One must prove that the harassment occurred, and

(2) One must prove that the employer did not have adequate policies and procedures in place to prevent the harassment from occurring.

Section 14A(2) provides that an employer has a stateable defence to a claim of either harassment or sexual harassment if they can evidence that they “took such steps as are reasonably practicable, (a) … to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) … to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.”

Examples of steps which can be taken by the employer which may be deemed ‘reasonable’ include, regular training for both employees including managers, sufficient opportunities for staff to ask questions in relation to the training received, all employees should receive updated policies, all employees should be aware of the complaints, grievance procedure in operation, etc.

Conclusion:

There are strong protections afforded to employees in the area of harassment in the workplace. The law is clear and the scope is wide in relation to what will constitute a successful claim. However, equally the law provides a strong defence to employers, permitting them to mitigate liability in situations where they have taken reasonable steps to prevent such incidents from occurring.

About the author: Sinead Leahy is a Legal Intern in Dermot G O'Donovan Solicitors and can be contacted at leahys@dgod.ie