When love at work works … and what HR Professionals need to know when it doesn’t

Who knows when Cupid’s arrow will strike? Will it strike through the means of a work device or an online dating service that gauges an employee’s best match based on proximity to other site members. When love at work works, it is a thing of beauty. When it doesn’t, HR professionals and managers need to keep a few legal issues in mind. This article addresses the reality that we live in a truly interconnected and free digital and online world. This freedom has, however, brought some negative aspects including a tendency for workplace concerns to arise when employees post online comments or images without the subject matter’s consent which cause significant harm and involve gross breaches of privacy. This article focuses on just one aspect of communications in a digitalised workplace – that of the instances of online sexual harassment in the workplace, which often mirror to some extent the pre-digital version of those harmful behaviours.

Privacy versus Freedom of Expression: When your employees’ romantic relationships become your business – Current Sexual Harassment Law in Ireland: A Summary

If unwelcome contact has the effect of violating a person’s dignity at work, it is likely that the conduct will meet the threshold to qualify as sexual harassment from the subjective viewpoint of the complainant [Section 14A(7)(b) Employment Equality Act 2004]. It is irrelevant if the harasser did not intend to harass the complainant or that the harasser believed that the behaviour was mere workplace banter. There is no requirement that the conduct itself must be reasonably capable of being viewed as sexual harassment. The scope of sexual harassment provisions extend beyond the workplace for example to conferences, training and work-related social events. [The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012].

In practice, a less rigid approach has been adopted by the WRC, although the Equality Tribunal in the past has on a number of occasions pointed out that it is the effect the conduct has on the recipient rather than the intention of the perpetrator that matters. [Scanlon v St Vincent’s Hospital DEC-E- 2007-001].

Text Messages

It is well established that unwelcome text messages can form the basis of a successful sexual harassment suit. This fact extends to text messages sent between work colleagues outside of work hours. [Section 13 Post Office (Amendment) Act 1951, see also Female Employee v A Recruitment Company DEC-E-2008-15].

Proportionality - Balancing Privacy, Freedom of Expression and the Harm Principle: Employers’ Exposure

According to Social Media Statistics Ireland, 63% of all Facebook users in Ireland are under 35 and over 17. It is unsurprising then that privacy concerns relating to the use of social media sites at work are central to many HR strategic discussions we are advising on in 2017.

As an employers’ liability for sexual harassment is an eye-watering maximum of four years’ salary – specifically, two years’ salary for sexual harassment, 1 year’s salary for victimisation and 1 year’s salary for penalisation - employers are sitting up and taking notice. The compensation is often the lesser of two serious concerns for an employer – the primary concern being how an employer deals Page 2 of 2 with the cultural shift it needs to make when an adjudicator or Labour Court directs that corrective action in the form of diversity, dignity at work and harassment training is provided to all employees and a full HR audit of policies and practices is undertaken. Such a direction is possible to roll out, but challenging to implement.

The importance of implementing and effectively communicating harassment and dignity at work policies cannot be conveyed in strong enough terms as the only defence available currently to an employer is that the employer took reasonable steps to prevent and deal with a sexual harassment issue [Sections 14A and 15(3) of the Employment Equality Acts 1998 – 2004].

Supportive and positive digital safety at work – how can the legal gaps be addressed to make the law more relevant to working in a digital age?

Irish employment and equality law does not comprehensively cater for the many types of digital communications that take place without consent. In 2016, the Irish Law Reform Commission produced a report on Harmful Communications and Digital Safety. The Report included a draft Harmful Communications and Digital Safety Bill which the Department of Justice today confirmed they hope will reach bill stage in 2017.

What are the digital online offences referred to in the report?

The report develops the concept of an extended definition of harassment to include an aggravated form of sexual harassment described as stalking, intentional online shaming, revenge pornography, catfishing (stealing someone’s identify by making a fake profile), cyber bullying and hate speech.

The Report suggests the implementation of a new statutory oversight system in the form of a Digital Safety Commissioner (the Commissioner) to promote digital safety and oversee an efficient takedown of offensive material procedure. It is proposed also that the Commissioner would publish a statutory Code on Digital Safety which will have an extra territorial effect.

What can employers do now?

Undertake a full HR audit - build in an option in your dignity at work and social media policies confirming that you as a supportive employer will assist an employee to gain traction with a social media site that holds harmful material which originated from the workplace (or was likely to have done so), with the aim of having the offensive material taken down.

Where alternative dispute resolution techniques do not yield a result, consider a formal and independent investigation.

Until the law is reformed, employers need to apply the principles of natural justice and fair procedures as well as existing law to best develop a response to a concern arising from digital sexual harassment at work on a case by case basis.