Sexual Harassment - How Do I Handle It?

With former employees of superstar, Lizzo, and global fast-food chain McDonald’s having recently made very public allegations of sexual harassment in the workplace, the topic of workplace sexual harassment is at the forefront of employers’ minds. Employers are asking how they handle this tricky and sensitive area of employment law.

When an employer is faced with an allegation of sexual harassment in the workplace, it is vital that it is dealt with appropriately and sensitively, primarily for the sake of the employee who has made the allegation, but also to manage the company’s reputation, both from a staff morale and public perception point of view. And, of course, when an allegation is made – it is just that, an allegation and the employer’s duty of care extends to both alleged victim and alleged perpetrator.

Sexual Harassment in the context of a workplace is primarily governed by Section 14(A) of the Employment Equality Acts 1998-2015 (as amended) (“the Acts”). The Acts provide the definition of sexual harassment and also provide that sexual harassment of an employee can constitute discrimination by the employer in relation to that employee’s conditions of employment.

An employer will be responsible for the sexual harassment of an employee (which includes an agency worker or trainee) in the course of that employee’s employment where the perpetrator of the sexual harassment is that employee’s employer, co-worker, or a client, customer or other business contact of the employer (where the circumstances are such that the employer ought reasonably to have taken steps to prevent that sexual harassment). Essentially, an employer must be aware that almost all persons with whom their employees may reasonably be assumed to come into contact in the course of their working life could be considered a perpetrator for the purposes of the Acts, for instance, external contractors, cleaning and maintenance staff, interns and volunteers.

The Acts define sexual harassment as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating hostile, degrading, humiliating or offensive environment for the person”.Importantly, this definition of sexual harassment focuses not on the intention or motive of the perpetrator but rather on how the victim of sexual harassment perceives the conduct that they have encountered. Indeed, sexual harassment need not even be directed at a specific employee but may nevertheless have the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment for that person. Therefore, it may be the case that certain behaviours that may be acceptable to one employee may be perceived very differently by another. It is the perception of the conduct encountered by the employee who makes a complaint of sexual harassment that is paramount when determining whether sexual harassment has occurred.

The Acts provide a non-exhaustive and broad list of the types of behaviours that may constitute sexual harassment, to include gestures, spoken words, physical acts and the sharing of inappropriate images or material. Sexual harassment may occur as a once-off act or be a series of events.

Employers should be aware that the scope of the sexual harassment provisions under the Acts extends beyond just the primary workplace to sexual harassment that takes place, for example, on a work trip, at a work-related social event (Christmas parties can be a particular issue for employers), or a work-related conference.

Employers are responsible in law for the sexual harassment of their employee by the above-listed persons (being the employer themselves, co-workers, clients, customers, and other business contacts of the employer). Although employers cannot hold complete control over the actions and behaviours of their employees, under the Acts, employers do have a crucial role to play in a preventative and remedial sense when it comes to sexual harassment in the workplace. Liability may arise for employers when they have not reasonably exercised their preventative and remedial roles. In that regard, the Acts provide that it is a defence for an employer to prove that they took such steps as were reasonably practicable to prevent the sexual harassment of their employee at the workplace or, where the harassment has occurred, to prevent the employee from being treated differently in the course of their employment as a result of that, and to reverse the effects of that harassment. The most obvious first step for employers is to devise an appropriate policy setting out that sexual harassment in the course of employment will not be tolerated and providing the steps that will be followed in the event that allegations do arise. Along with drafting the policy, employers also have to communicate the messaging in the workplace and create a culture whereby such behaviour is not tolerated and is addressed appropriately should it arise.

The Irish Human Rights and Equality Commission has published a Code of Practice on Sexual Harassment and Harassment at Work which is a valuable guide for employers and provides practical suggestions for employers in drafting and implementing policies and measures around the prevention of sexual harassment in the workplace. It is important to note that, although the Code of Practice is not legally binding, it is admissible as evidence in proceedings before the Workplace Relations Commission (“WRC”). Therefore, by not taking note of the contents of the Code of Practice and putting same into practice, employers may be opening themselves up to liability.

Where a claim involving allegations of sexual harassment is successfully taken by an employee against their employer before the WRC, the most common form of redress that an employer will face is an order for compensation for the effects of the discriminatory acts, being the sexual harassment, in an amount of up to the greater of either two years of the employee’s remuneration or €40,000.

How can employers take preventative steps?

Employers have an obligation to take reasonably practicable steps to prevent sexual harassment in the workplace.

The first step that employers should take in that regard is ensuring that they have a comprehensive, effective and accessible policy on sexual harassment in the workplace. The Code of Practice suggests that the purpose of the policy is not simply to prevent unlawful behaviour but to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur.

The Code of Practice is particularly instructive in terms of what should be included in a workplace policy on sexual harassment, and it is a great place for employers to start if they are looking to put such a policy in place.

Amongst others, the Code of Practice suggests including the following in a policy on sexual harassment:

• The organisation’s commitment to ensuring that the workplace is free from sexual harassment;
• That complaints by employees will be treated with fairness and sensitivity and in as confidential a manner as possible;
• The definition of sexual harassment and examples of the kind of behaviours will not be tolerated in the workplace;
• A statement encouraging employees to challenge sexual harassment in the workplace;
• The responsibilities of management in respect of ensuring that sexual harassment does not occur and that complaints are addressed promptly;
• A clear and precise procedure that an employee should follow if they wish to make a complaint of sexual harassment in the workplace, to include an informal stage, the option to engage in mediation, a formal investigation and the option to appeal the outcome of a formal investigation;
• That sexual harassment in the workplace may lead to disciplinary action or other sanctions being imposed by the employer.

It is key for employers to conduct a thorough, fair, objective and prompt investigation into allegations of sexual harassment. Any investigation should be carried out with due respect for the rights of both parties to the investigation and should adhere to the principles of natural justice. Confidentiality will be key, given the sensitive nature of this area. Such investigation should be carried out either by an appropriate person within the organisation who is in no way connected with the allegation or alternatively by an external investigator. Terms of reference governing the investigation should be drawn up and circulated to the parties involved in advance of the commencement of an investigation. The outcome of the investigation should be delivered in writing by way of a report outlining any findings and the reasons for the final decision that is reached. Both parties should be informed of their right to appeal the outcome of the investigation within a prescribed timeframe.

Being involved in a workplace investigation, particularly one dealing with a sensitive topic such as sexual harassment, can be an uncomfortable or distressing position for employees to find themselves in. If an employer has an Employee Assistance Programme in place within their organisation, it would be wise to remind employees of the existence of that programme and encourage employees to seek support and assistance through that programme.

As part of a policy on sexual harassment in the workplace, employers should consider including a provision allowing them to place an employee against whom an allegation of sexual harassment has been made on paid suspension pending the outcome of an investigation and potential disciplinary proceedings that may result in respect of the allegation that has been complained of. Suspension of an employee is not a measure that should be taken lightly, however, it may be a necessary measure where an allegation of sexual harassment is concerned, given the serious and sensitive nature of such allegation. Suspension of the alleged perpetrator may be necessary as a means of preventing repetition of the conduct complained of and to protect employees who may be at risk. All other alternatives to suspension on pay should be considered before the final decision is made in this regard.

It would be helpful for employers to ensure that employees sign their policy on sexual harassment in the workplace to confirm that the employees have read and understood the policy. Employers not being able to demonstrate that their employees have a proper understanding of their sexual harassment policy has proved detrimental for an employer’s defence in decisions of the WRC.  Employees who do not have English as their first language may require a translation of the policy also.

However, employers should go further than simply having a policy in place on paper within their organisation. Employers should be proactive in training and educating their staff on the behaviours that may constitute sexual harassment and, on the impacts and effects that an act of sexual harassment may have on a victim employee. Effective implementation of a workplace policy is just as important as having policies and procedures in place on paper.  Should a complaint of sexual assault be brought before the WRC both the policies available as well as how they were implemented in practice will be considered when examining the reasonably practicable steps taken by an employer to prevent the conduct complained of.

Employers should ensure that any policies they have in place dealing with sexual harassment in the workplace are reviewed regularly and updated in line with legal developments as well as to reflect evolving workplace practices.

The culture of the organisation is also so important, and employers need to remind employees, particularly in advance of work social events, about conducting themselves appropriately and that inappropriate behaviour will not be tolerated.

Legal Island Training Resources for Your Staff

Workplace Bullying and Harassment | eLearning Course

Are you responsible for overseeing the implementation of training for all employees on the new Bullying Code of Practice in your organisation?
Legal Island has created a 45-minute eLearning course for all employees. The provision of this training for your staff will enable your organisation to act in compliance with the Code and help to raise awareness of bullying and harassment in the workplace and explain what to do if employees are concerned.

Click here to view our course on workplace bullying and harassment.