How To: Handle The New Code of Practice on Harassment at Work

Introduction

Following hard on the heels of the revised Code of Practice on bullying at work, to coincide with International Women’s Day, the Irish Human Rights and Equality Commission (IHREC) has launched an updated version of the 2002 ‘Code of Practice on Sexual Harassment and Harassment at Work’.  This is a welcome development, as the new Code serves to integrate consequential legal developments in the area over the past 20 years, whilst providing practitioners with good guidance on how to proceed in this topical, tricky and toxic territory of harassment at work.

In this article an attempt is made to summarise the key features of the new Code, alert practitioners to its more consequential components and advise on practical and policy changes warranted by its publication.

1. What Does the Code Cover?

The Code explains that it is derived from the Employment Equality Act 1998-2015 (EEA) and its nine protected grounds or categories: gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Though it is applicable to all employments, the IHREC acknowledges that small and medium sized enterprises can adapt the Code in a manner that is appropriate to their size and structure, albeit without sidestepping the Code’s objective. Furthermore, it explains that the relevant legislation also extends to: (a) protecting employees from harassment by clients, customers and service users and other business contacts (e.g. suppliers, cleaners, maintenance workers) and (b) non-workplace-based events (e.g. conferences, training, work-related social events, social media sites).

Most pertinently, it also reminds parties that harassment that is not linked to one or more of these protected categories or prohibited discriminatory grounds is not covered by the legislation or Code. However, it does emphasise that harassment can be a single incident and that behaviour may be considered to be ‘harassment’ even though it is not directed at a specific employee. Related thereto, it reminds parties that:

1.  the perpetrator’s intent is irrelevant (e.g. ‘I was only having the craic’) and
2. the fact that an individual has previously acceded to the behaviour does not stop her/him from subsequently deciding that it is unwelcome. That is, it is the ‘unwanted nature’ of the conduct that differentiates sexual harassment and harassment from behaviour which is ‘welcome and mutual’.

2. What Is Harassment?

The Code confirms that ‘harassment’ is any form of unwanted conduct related to any of the aforementioned categories or prohibited grounds, having the ‘purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment for the person’. Likewise, sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, with the same purpose or effect.

What is particularly pertinent in this regard is that the Code’s provisions also extend to situations where a ground ‘used to exist’ (e.g. illness), ‘may exist in the future’ (e.g. pregnancy) or is ‘imputed to a person’ (e.g. one is assumed to be HIV positive or a member of the Traveller community).  Elaborating thereon, the Code explains that the legislation applies where the employee does not have a relevant characteristic related to the aforementioned grounds/categories, but the perpetrator believes that they do (e.g., one incorrectly assumes that the object of their harassment is gay or has a disability).

3. What Is The Impact of Harassment?

The revised Code places a greater emphasis on explaining the impact of harassment, reminding parties that it can have a ‘devastating effect’ on the health, confidence, morale and performance of staff, contributing to sickness, stress, labour turnover and reduced efficiency and profitability. In a similar (employee welfare and support) vein, the Code recommends that parties to a complaint should be given appropriate support and follow-up after an investigation, pointing out that an investigatory process is likely to result in tension and disharmony between parties and amongst co-workers.

4. What Is the Code’s Purpose?

Put plainly, the purpose of the new Code is to promote the development and implementation of policies and procedures to ensure that workplaces are harassment-free.Consequentially however, the Code’s provisions are admissible in evidence in court and at Workplace Relations Commission (WRC) and Labour Court hearings.

5. What Is the Route To Resolution?

The Code explains that if a complaint is not resolved via the informal process (incl. the mediation option), it can be pursued formally (see points 6 and 7 below), with the further option of making a claim at the WRC (or the Circuit Court in a gender claim). Related thereto, it elaborates that both the WRC and the Labour Court have the power to access an employer’s premises, requiring the production of ‘material information’ relevant to an investigation. They may also require parties to give evidence at a hearing. Related thereto, a complainant has the right to seek ‘material information’ from an employer about alleged acts of harassment, the employer’s failure to deal with them and associated procedures. Though there is no obligation on an employer to provide this ‘material information’, the Circuit Court, the WRC and the Labour Court can ‘draw such inferences as seem appropriate’ from any such decision.

6. What Are the Redress Options?

On the matter of the ‘bottom line’, it is relevant that the maximum that can be awarded by the WRC and the Labour Court to complainants - who were in receipt of pay at the time of the referral of the claim (or at the time of dismissal) - is 104 weeks’ pay (or €40,000, if greater). For other complainants, the maximum award is €13,000, though there is no ceiling on the sum that can be awarded by the Circuit Court in respect of gender-based harassment complaints. An order for equal treatment or for a specified course of action can also be made, whilst in dismissal-related complaints, the WRC, Labour Court or the Circuit Court can order re-instatement or re-engagement.

7. What Are the Employer’s Obligations?

The relevant legislation obliges employers to act ‘in a preventative and remedial way’, whilst the Code advises that they are legally responsible for harassment suffered by employees in the course of their employment, unless reasonably practicable steps were taken to prevent it, to reverse its effects and to prevent its recurrence. To avail of such a defence, the Code confirms that one ‘must have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action’. Whilst this extends to an accessible complaints procedure, notably the Code reminds employers that if they should become aware of harassment without a complaint being made (e.g. via an exit interview) they still ‘have a duty to act’.

The Code also reminds employers that ‘management and others in positions of authority have a particular responsibility to ensure that harassment does not occur and that complaints are addressed promptly’ (and sensitively). It also proposes the appointment of an organisational ‘champion’ as an ‘independent voice advocating for a diverse workplace culture free of harassment’. On top thereof, it recommends the appointment of a ‘competent person’ with appropriate qualifications, training and experience, with responsibility for ensuring that monitoring, training and reviews occur, who may avail of support from (yet another) ‘competent person’ from outside of the organisation.

8. How Should the Complaints Procedure Work?

The standard starting point for resolving complaints informally is via a ‘competent named person’, who provides information on the procedure and policy and assists in the informal resolution of problems. Alternately, the Code advises that one could seek support from (or for the initial approach to be made to the alleged perpetrator) by ‘a sympathetic friend, designated person or trade union representative’. Turning to the ‘core elements’ of an organisation’s complaints procedure, the Code emphasises the importance of such standard provisions as: confidentiality, procedural fairness, the relationship with the disciplinary procedure, investigation time limits, the complainant’s statutory rights (and the associated time limits), the prohibition on victimisation or sanction associated with the process/procedure, practical workplace arrangements for parties pending the outcome of an investigation and the appeals process.

9. How Should Investigations Be Conducted?

In the event that the informal route to resolution is unsuccessful (or is not applicable), the formal investigation route kicks in. In this regard the Commission’s Code reminds parties that both the principles of natural justice and relevant data protection legislative provisions must be adhered to. With regard to the investigatory process, the Code advises that it is ‘preferable that at least two people should investigate a complaint’ and that ‘the investigation team should have received appropriate training’. The Code is also very specific about the manner in which an investigation should be conducted, advising that:

• the complaint should be in writing and that the alleged perpetrator be given full details thereof, including relevant written statements, documentation and evidence, incl. social media communications, CCTV footage, witness statements, interview notes and records of meetings held with witnesses. They should also be given time to consider the documentation and an opportunity to respond thereto.

• the investigation, having considered all relevant information, provide a written report to both parties outlining its findings and the reasons for its final decision; 

•  should the investigation conclude that the accused employee has a case to answer, then the report will recommend whether the disciplinary procedure should be invoked;

• should the investigation conclude that the accused non-employee has a case to answer, then the report will recommend whether sanctions against her/him or her/his employer are appropriate. Such sanctions may include exclusion of the individual from the premises, suspension or termination of service or suspension or termination of a supply service or other contract.

• in the event that the person accused of harassment is not an employee, they may not wish to participate in the formal procedure, and it won’t be possible to secure their participation. However, they must be kept informed of all developments in the investigation and given an opportunity to respond to them.

10. Who Should Be Trained?

As a component of the communication’s process, the Code recommends ‘a commitment to training managers, supervisors and all staff on strategies to prevent harassment’. It points out that this should happen at induction and via awareness-raising initiatives, being especially important for those with responsibility for implementing the policy and the processing of complaints.

The Code is available here:
https://www.ihrec.ie/documents/code-of-practice-on-sexual-harassment-and-harassment-at-work-2/