by Terence McCrann, Head of the Employment Group, McCann FitzGerald
Recent controversies in Hollywood, Westminster and those closer to home have shone the spotlight on the issue of sexual harassment in the workplace. These events should act as a wake-up call for employers about the need to ensure a culture of respect in the workplace and a zero-tolerance policy on harassment, sexual harassment and bullying of any kind. In today’s digital world, there is a greater level of perceived freedom for employees to say, in an online and public forum, whatever they like, whenever they like, making it even harder for employers to create and maintain a climate of respect. So what should employers be doing when it comes to sexual harassment and what do they need to know?
What is the law?
The first step for employers is to know the law. The Employment Equality Acts 1998 to 2015 (the Equality Acts), provide that, where an employee is sexually harassed in the course of his or her employment, this amounts to discrimination by the employer and a breach of that employee’s terms and conditions of employment. Sexual harassment is defined as “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”.
The test for sexual harassment is subjective and therefore focuses on the effects of the conduct on an individual employee. The Labour Court has confirmed that, once conduct has been proven as having the effect of violating an employee’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment, it constitutes sexual harassment..
“Unwanted conduct” can be acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. Sexual harassment can be carried out by any of the employer, co-workers, agency workers, consultants, clients, customers or other business contacts of the employer with whom the employer might reasonably expect the employee to come into contact during his or her employment. Acts of sexual harassment (from an employment law perspective) must occur “in the course of employment”. The Labour Court has confirmed that this includes conferences, training or work-related social events. An employer can also be “vicariously liable” for sexual harassment carried out by employees through text messages and social media contact, outside the workplace.
What is the Code of Practice?
The Equality Acts provides a defence for an employer where an incident of sexual harassment or victimisation has been alleged against the employer. The possibility of an employer being held vicariously liable for the sexual harassment suffered by employees in the course of their work diminishes if the employer can show that it took reasonably practical steps to prevent it, or sought to alleviate its effects and prevent a re-occurrence.
Employers should ensure that comprehensive anti-harassment policies are in place which comply with The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (the “Code of Practice”). The Code of Practice, provides important guidelines for employers in the area of sexual harassment, and harassment more generally. The Code of Practice requires the development of both an effective policy and a strong commitment from management to implementing the policy as part of a broader policy of promoting equality of opportunity in the workplace.
While most employers have sufficient policies in place, their downfall is in the application in the workplace on a daily basis.
Recent Irish cases
A general grievance procedure or an informal “open door” approach for the raising of complaints is not enough to address sexual harassment issues. In a recent Labour Court case, it was noted that the employer had no anti-harassment policy in place at the time of the incidents of sexual harassment (the employer subsequently adopted a policy). The Labour Court decided that regardless of the size of the employer, it must adopt measures to prevent harassment in the workplace and, accordingly, the employer was found to have failed to have appropriate arrangements in place to address sexual harassment.
Another case last year involved allegations of sexual harassment of a female sales assistant by male co-workers. One co-worker had asked the employee to go on a date with him and to move in with him, despite the employee advising him that she was married. The employee also gave evidence of male co-workers regularly making sexist comments and directing gossip of a sexual nature towards her. She gave evidence that a male co-worker had spread rumours that she was having an affair and that she would utter sexual expletives on any occasion that a male employee was in the same aisle as her. When this was raised with her employer, the employee was advised by her manager that her co-workers were “just young lads”. When questioned, her co-workers admitted engaging in sexually explicit conversations, but said they had not been directed at the employee personally.
The Court decided that the employee had been sexually harassed. The Court also found that the employee had asked for the behaviour to stop and as such, it was unwanted and unwelcome. The Court decided that conduct creating an offensive environment amounted to sexual harassment even where the comments of co-workers had not been directed towards the employee personally.
What should employers be doing?
Employers must put reasonable measures in place to prevent sexual harassment in the workplace and deal quickly and effectively with any incidents that might arise. Anti-harassment policies must be effectively communicated to employees and management must be trained to recognise and address harassment when it arises. Irish case law shows that where an employer has effective policies in place, implements them fully and provides focused training for employees, the employer will not only be in a much better position to defend against a sexual harassment claim, it will also create a much better environment and place to work.
Employers should review their Dignity at Work and Sexual Harassment policies and equally importantly “walk the talk” to ensure a respectful culture in the workplace.