How to Establish a Reasonable Steps DefencePosted in : Equality Law Decisions on 12 November 2019
The issue of sexual harassment remains in the spotlight with substantial awards being made by the Workplace Relations Commission in such cases. It is essential that employers follow certain steps to protect themselves against such claims.
The legal position
The Employment Equality Acts 1998-2015 ("The Acts") protects employees from sexual harassment by the employer, fellow employees, clients, customers and other business contacts including any person with whom the employer might reasonably expect the employee to come into contact in the workplace. The Acts provide that if an employee is sexually harassed during the course of his or her employment that it amounts to discrimination by the employer.
Section 14A((7)(a) of the Acts define harassment and sexual harassment as "any form of unwanted conduct…any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose of affecting or 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.
Section 14A((2)(a) of the Acts provide that an employer is obliged to take reasonable steps to ensure that employees are not subject to sexual harassment during the course of their employment ("the defence of reasonably practicable steps"). The test for sexual harassment is subjective and focuses on the effects of the conduct on the individual employee.
Code of Practice
The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 ("the Code") provides useful guidance to employers in this area. The Code focuses on prevention as the best way to minimise sexual harassment in the workplace and elaborates on the defence of reasonably practicable steps. In order to establish a defence of reasonable practicable steps an employer must focus on the following elements of the process:
Employers must show they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action and effective accessible complaints procedures. The Code spells out the core elements of a Dignity at Work Policy, which should set out the following:
- the organisation's commitment to ensuring the workplace is free from sexual harassment
- a definition of sexual harassment
- the responsibility of employees and non-employees such as clients and customers to respect the rights of others
- the allocation of responsibilities under the Acts. This includes management setting a good example, promoting awareness of issues, remaining vigilant for signs of harassment, responding sensitively to an employee who makes a complaint, explaining procedures to a complainant before a complaint is made, ensuring the alleged perpetrator is treated fairly, ensuring the employee making a complaint is not victimised and monitoring the situation after the complaint is made.
Employers should ensure that there is effective communication of the policy. Ideally, this will form part of the formal induction process and be included in the company handbook. The Code also suggests that it may be appropriate for the contracts of the employer with clients to provide that sexual harassment would constitute a repudiation of the contract.
Employers should ensure that there is a process in place to monitor incidents of sexual harassment. This process should be set out within the policy.
Employers should ensure that training is provided to staff on an ongoing basis, in particular management who will be dealing with these complaints.
Employers should ensure there is a clear accessible complaints procedure in place. The complaints procedure should be set out in plain English, setting out employees' rights, time limits for investigations, the necessity for confidentiality and prospective sanctions. It should also make it clear that employees will not be victimised for utilising the process.
There should be a commitment to regularly review the policy, handbook and all associated processes in line with changes in the law or relevant case law.
A recent case involving an Institute of Technology and an employee re-affirmed that principle that the mere existence of a Dignity at Work Policy will not be sufficient to establish a defence to a sexual harassment claim. It was found that a teacher was sexually harassed by a number of her male students and that the steps taken by the college fell short of establishing a defence to her claim of sexual harassment.
The employee lodged a complaint with her employer when a large number of her male students made offensive sexual comments towards her. It is noteworthy that the alleged aggressors were not employees. In order to proceed to the employer's Student Disciplinary Committee, the employee was required to identify all students involved. The employee was unable to do so. This meant that there was no mechanism in place to facilitate a response to the complaint. In order to address the complaint the employer split the class into two separate groups. The employer then established a training programme on dignity at work for the students in question however, there was no evidence that the training programme addressed sexual harassment or harassment based on gender.
Ultimately, the Labour Court found that the employer did not take such steps as were reasonably practical to prevent sexual harassment and harassment based on gender in the workplace. The employer had a Dignity and Respect at Work Policy in place; however, that policy was not effectively communicated to students. The Labour Court ordered the employer to review the operation of its Dignity and Respect Policy and the effectiveness of arrangements and how that policy was communicated to students. It also ordered the employer to review how the college responded to complaints made by teaching staff based on gender including situations where the victim did not know the identity of individuals. The key flaws identified in the employer's process were poor training, inadequate communication and poor complaint handling.
In order to best protect themselves from sexual harassment claims an employer should consider taking the following steps:
- Establishing a clear accessible Dignity at Work policy including a complaints procedure
- Regularly reviewing that policy to take account of new developments
- Effectively communicating the policy to employees and customers or clients
- Providing training to managers nominated to investigating complaints
- Ensuring complaints are effectively investigated
- Communicating the outcome of investigations to the parties involved with appropriate sanctions being applied as required.
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