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Sexual harassment - what responsibilities do employers have to their employees?

  • Ireland
  • General


Hardly a day has gone by in recent weeks without a headline about sexual harassment, be it from Hollywood, Ireland or elsewhere. Hopefully, this media attention will assist in creating a more open culture in the workplace, where sexual harassment is not tolerated and incidents of questionable behaviour are reported and appropriately addressed. However, these headlines may also give CEOs and former CEOs across the country cause to reflect on their own behaviour and that of their employees. Indeed, they may wonder whether historic behaviours in their workplace would stand up to current scrutiny and what, if any, exposure they may face in this regard. 

Sexual harassment is prohibited by the Employment Equality Acts 1998 – 2015 (the “Acts”). The definition under the Acts is extremely broad – “unwanted conduct” includes spoken words, gestures or the production and display of written words, pictures and other material. It can be by a fellow worker, a boss or supervisor, a client, a customer or any other business contact. It can take place at work or on a training course, on a work trip, at a work social event or any other occasion connected with a job. It is also clear from the definition that how the subject feels about the behaviour can decide what constitutes harassment, with the behaviour in question being “unwanted” by the individual and having either the “purpose or effect” of violating a person’s dignity. This essentially means that what amounts to sexual harassment for one person may not for another.

While employers may be satisfied that their own behaviour does not amount to sexual harassment, they may not have the same certainty when it comes to their employees. However, a recent Supreme Court case held that an employer can be vicariously liable for its employee’s actions, even where the employer is not at fault. Employees simply have to show the harassment or bullying took place “in close connection” with their employment. The case had the effect of substantially broadening the scenarios in which employers are liable for their employees’ actions, including in relation to sexual harassment.

With an increased risk of employee claims, employers may wonder how far back they need to re-trace their or their employees’ steps. For claims brought before the Workplace Relations Commission (“WRC”), employees have 6 months to take a claim. This time limit can be increased to 12 months if “reasonable cause” for the delay can be shown. For this deadline, the clock starts at the last incident of alleged sexual harassment. Therefore, although the behaviour may have begun more than 6 months ago, an employee may still be eligible to take this claim if the behaviour in question is continuous and the most recent incident occurred within the last 6 months.  The WRC has taken a strong stance on this issue, and a recent sexual harassment case resulted in the maximum award to an employee of 2 years’ gross remuneration.

Aside from these WRC claims, if the alleged sexual harassment at work is so great that it causes an employee’s health (physical or psychological) to suffer or be affected, an employee may also be entitled to bring a claim for compensation for personal injury to the civil courts. These types of claims are costly for all involved. Unlike WRC claims, they are heard in a public forum and therefore, can be more distressing process for the employee and, from the company’s perspective can cause significant reputational harm, regardless of the outcome. Employees have 2 years from the date of when the injury occurred or from when the employee became aware of an injury occurring. Therefore, if the injury caused by workplace sexual harassment arises later, an employee may still be within time to take a claim.  

Given the numerous claims available to employees, it may seem that employers are navigating a minefield when dealing issues of sexual harassment. However, there are steps that can be taken to effectively address harassment.

In this regard, “prevention is better than cure” and the sooner employers take steps to minimise these behaviours happening in the first place, the less likely they are to incur liability. In practical terms, this involves putting in place a comprehensive Dignity at Work policy. These policies have become a feature of many workplaces and are a good first step in creating a culture where harassment is not tolerated. This policy should set out what is unacceptable behaviour at work and outline an effective informal and formal complaints procedure to deal with complaints about harassment. The responsibilities of the various stakeholders in the workplace should be clear from this policy.

While preparing a comprehensive Dignity at Work policy is a good first step, it is not enough to have a textbook standard policy sitting on the office bookshelves, that can be taken down, dusted off and produced when an issue of harassment arises. This policy should be implemented in the workplace and easily accessible by all employees.  Employees should be trained on what this policy means for them: the various stakeholders should understand their rights and responsibilities and managers and designated personnel understand how to deal with complaints in line with this policy when they arise. When conducting risk assessments, ensure that consideration is given to harassment as a potential risk. This should be a living document which should be reviewed regularly to ensure it is effective.

In the current climate, it may seem a daunting task to address issues head on.  However, given the significant liability that employers may face, they have no option but to take steps to create a culture where sexual harassment is not tolerated. An effective Dignity at Work policy should assist in this regard by providing a roadmap for dealing with sexual harassment in a manner that is in line with best practice.

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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