Sexual Harassment in the Workplace

What is Sexual Harassment?

The Employment Equality Acts 1998-2015 defines sexual harassment as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

In line with the current laws, sexual harassment is defined in a subjective way and sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. Sexual harassment can take many forms such as actions, gestures, spoken or written words, e-mails, text messages and social media posts.

It is important to note that sexual harassment can be carried out by the employer, a fellow employee, or a client, a customer, a business contact of the employer or anyone the employer could reasonably expect the worker to come into contact with during the course of their work. It is also important for all companies to understand that sexual harassment can take place at work, on a training course, on a work trip, at a work social event or any other occasion connected with a job.

How the person feels about the behaviour can decide what constitutes harassment. For example, a simple joke to one person may be interpreted the same way by another person who may feel it was an unwanted sexual natured joke which they felt violated their dignity or they would argue that it created an offensive environment as a result of the joke. The laws governing sexual harassment are concerned with the effect the conduct has on the victim and not the intention of the alleged person who has committed this conduct. The Code of Practice also outlines “it is an essential characteristic of sexual harassment that it is unwanted by the recipient, that is for each individual to determine what behaviour is acceptable to them and what they regard as offensive". 

Unlike bullying, which must relate to "repeated inappropriate behaviour", sexual harassment can exist of a single once-off incident. 

Company Harassment Policy 

There is a statutory obligation on employers to put in place adequate safeguards against inappropriate conduct from all of the above categories of persons.

The Department of Justice, Equality and Law Reform produced an updated Code of Practice on Sexual Harassment and Harassment in 2012.   The code seeks to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected.

Sexual Harassment Complaints

A complaint of sexual harassment is both serious and complex as is the intervention required for resolution and so we suggest that you contact The HR Suite immediately who will be able to advise and guide you in dealing with the compliant fairly and proactively. However the first thing to ensure is that you follow your own Dignity & Respect at Work policy and the procedure outlined within it.

Vicarious Liability

Vicarious Liability provides that where an employee commits any wrongdoing in the course of their employment you, as the employer, can be held vicariously liable for the actions of your employee because the employer is in control of the actions that the employee carries out in the course of their employment.

Organisations are legally liable for sexual harassment by their employees, even if the organisation itself is not at fault. Employees have six months to take a claim before the WRC however this time limit can be increased to 12 months if reasonable cause for the delay can be shown. However, Section 14A (2) of the EEA provides an employer with a full defence against a claim of harassment or sexual harassment where the employer may prove they took such steps as were reasonably practicable to:

1. Prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim; and
2. Prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

Sexual Harassment Claims

All claims of sexual harassment have potential to be costly for companies. The WRC has taken a strong stance on this issue with cases often resulting in the maximum award to an employee of two years’ gross salary. An employee may also be entitled to bring a claim for compensation for personal injury to the civil courts. Personal injury claims are heard in a public forum and, therefore, can also cause significant reputational harm for the company, regardless of the outcome and the awards are often much larger than awards from the WRC.

Prevention

There is a statutory obligation on employers to put in place adequate safeguards against inappropriate conduct. It is imperative that employers ensure they have adequate "preventative" and "curative" systems in place to minimise the risk of sexual harassment in the workplace. The following is list of measures all companies should put in place to minimise the risk:

• Ensure you have a comprehensive Dignity & Respect at Work Policy in your company handbook. You must ensure that all employees have signed off they have read and understood the same, the handbook should be easily accessible by all employees. 

• Ensure that staff of all levels have received training on this policy as well as signing off that they have read and understood the contents of it.

• Provide access to an Employee Assistance Programme.