Protecting Employers and Employees from the Effects of Sexual Harassment in the Workplace
Sexual harassment is 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 (Employment Equality Act s. 14A (7)).
Sexual harassment in the workplace is a major risk factor for depression, anxiety and suicide. In 2015, the Sixth European Working Conditions Survey reported that 17% of women and 15% of men report having been exposed to adverse social behaviour. It is therefore essential that employers take the necessary steps to protect their employees from this type of conduct, and prevent claims of harassment and vicarious liability.
Social Media and Sexual Harassment
Social media plays an increasingly significant role in the workplace. A policy on the use of social media in the workplace which links in with other disciplinary policies is therefore essential.
The recent case of Dublin Bus v McCamley dealt with this particular issue.
In determining whether the employee had suffered harassment in the course of his employment resulting in liability of the employer under the Employment Equality Acts, the Labour Court held that it was irrelevant that the harasser was off duty or at home when he posted the offending material, but was essential that the victim suffered the harassment in the course of employment, and further there must be some discernible connection between the harassment and the victim’s employment.
The Court determined that as offending comments on Facebook had been posted as a result of the Employee’s capacity as an employee, they had suffered harassment within the scope of Section 14A (7).
The Employer was liable for that harassment unless it could avail of section 14A (2) by demonstrating that preventative measures were taken before the offending conduct occurred.
The relevant provision states:
(2) If sexual harassment of the victim by a person other than his or her employer would be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable;
(a) in a case where subsection (1)(a) applies, to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim Where;
(a) the victim is harassed or sexually harassed either at the workplace or otherwise in the course of his or her employment by a person who is;
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it
Although the Employer had a policy against sexual harassment at work, it did not refer specifically to the use of social media.
The Court held that although a sanction imposed under the Company Rule Handbook was not an adequate substitution for a policy against harassment through the use of social media, it did protect employees from any form of prejudicial or harmful treatment by fellow employees. Therefore, the Employer could avail of s. 14A(2) and was not fixed with any liability.
Although the Employer in this case escaped liability, given the increased relevance of Social Media in the workplace Employers should not expect traditional Employee handbooks and policies to deal with social media issues. Putting in place an adequate policy which deals specifically with appropriate use of social media in the workplace should be a priority for all employers.
Recent Sexual Harassment Legal Case
The case of A Store and a Worker, where the complainant was awarded the significant sum of €15,000, highlights important issues regarding sexual harassment in the workplace:
Employers must ensure that managers undertake appropriate awareness training, and managers must recognise and act on complaints so that the Employer can avail of the defence under s.14A, Employment Equality Act (above).
This case also made clear that harassment is not required to be directed at the complainant personally in order for an action to be taken, and preventative measures must be the focus of an employer’s defence.
Finally, it was established that employers must confirm that their employees have read and understand the policy, and that the policy must be disseminated in a language which is understood by staff.
If the Employer in this case had trained all of their staff in dignity and equality issues, and had records to prove this, it would have greatly strengthened their defence to the claims of harassment and vicarious liability
Sexual Harassment Case Facts
The complainant worked at night stacking shelves. The behaviour of two male workers in the adjacent aisle was the subject of the complaint. The complainant raised her difficulties with her manager, eventually reporting her difficulties directly to HR. The manager did not record any of the incidents.
The Court held that management should be trained to deal with and recognise incidents of harassment.
It was concluded that the statutory definition of sexual harassment includes conduct which creates an offensive environment for the person, and so harassment need not be directed at the victim.
Significantly, the actions of the Employer subsequent to the incidents were not relevant to the questions before the Court. Therefore any investigation undertaken by the Employer was irrelevant for the defence under s 14A(2)(a).
This means that, contrary to common opinion, having preventive measures such as appropriate policies combined with appropriate actions on receipt of a complaint is not sufficient to secure the defence under 14A. Rather, the focus must be on taking measures to prevent harassment.
Here, the policy was in English only, not the native language of the perpetrators, and was therefore insufficient.
Further, the employer did not have adequate arrangements in place to ensure that the content and importance of that policy was properly understood by the Managers.
Therefore, the employer had not taken “such steps as were reasonably practicable” and could not avail of the defence.
NOTE: This article is for information purposes only; specific legal advice should be taken before relying on information in this article.
If you are an employer seeking advice regarding sexual harassment in the workplace, or if you are an employee and need assistance in relation to sexual harassment we would be delighted to assist you; contact us at 021- 425184 or via our contact form.
HALPIN & Co. SOLICITORS | Practical Experience, Trusted Advice