Not Part of the Job: Rejecting Sexual Harassment at Work

1 in 5 workers in Ireland had experienced sexual harassment in the workplace according to a 2019 survey conducted by the Irish Congress of Trade Unions (ICTU). Many conveyed that they did not report these incidents due to fears of retaliation or job loss.  Similarly, the Workplace Relations Commission acknowledges there is an underreporting of incidents, with many employees citing that they distrust the reporting processes and fear of worsening their work situation as the main reasons for not coming forward.

All this underscores a critical need that HR and business leaders need to step up and address this insidious problem to ensure there are effective workplace policies and support systems in place.

Victoria Smith, Knowledge Partner and employment law expert, Ciara O'Kennedy, Partner at LK Shields Solicitors LLP, discuss:

1. Detailed explanations of what constitutes sexual harassment under Irish law and how hostile work environments can allow inappropriate behaviour to happen.
2. Look back at key legal precedents and case law in Ireland to learn from and protect both your staff and business.
3. Outline the legal obligations of employers under Irish law.
4. Discuss how employers can implement robust policies and training for all staff on sexual harassment

This essential session, tailored for HR professionals, managers, and business leaders, delves into the legal, practical, and human aspects of addressing sexual harassment within the workplace.  We discuss recent legal developments and provide insights and tips on effective policies, best practice and how best to create awareness in the workplace regarding sexual harassment. 

Recording:

Download Slides HERE:Webinar - Sexual Harassment(23003662.2).pdf

Transcript:

Victoria:               Good morning, everyone, and welcome to our webinar, "Not Part of the Job: Rejecting Sexual Harassment at Work", sponsored by MCS Group. My name is Victoria Smith, and I'm a Knowledge Partner here at Legal-Island.

If this is your first time joining one of our webinars, you're very welcome. We run a number of these throughout the year to cover many topical issues within employment law.

I'm joined today with Ciara O'Kennedy, Partner at LK Shields Solicitors. I'll hand over to Ciara shortly, who will take you through today's webinar. But to put some context into our session today, according to a 2019 survey conducted by the Irish Congress of Trade Unions, one in five workers in Ireland had experienced sexual harassment in the workplace. Many conveyed that they did not report these incidents due to fear of retaliation or even job loss.

Similarly, the WRC acknowledges that there is a significant of under reporting of incidents, with many employees citing that they distrust the reporting processes and fear the worsening of their work situation as a main reason for not coming forward.

In this webinar, we'll cover what HR and business leaders need to do in order to step up and address this insidious problem to ensure that there are effective workplace policies and support systems in place. It is vital that leaders equip themselves with the latest knowledge and tools in creating a harassment-free workplace to safeguard all of their staff.

To help with this, Legal-Island has developed a Workplace Harassment and Sexual Harassment eLearning course, which is tailored specifically to Irish employment law, and it provides a comprehensive compliance training for all staff on how to recognise and address harassing behaviour in the workplace.

If you're interested, please do let us know. We'll be running a few quick polls, and it's all anonymous, so please don't worry about answering any of these questions. You'll see on the screen a poll, and it would just be interesting for us to see how some of our attendees are trying to handle this in their workplace.

So the first poll question is, "Does your organisation currently have an up-to-date harassment/sexual harassment policy?" Yes, or no? So I'll give you a minute just to answer that question here now, and we'll see the results.

Okay. So we'll see if those results can come up. There are the results. So 84% do have a policy in place, which is great. Sixteen per cent, however, have said no. So we'll maybe hear if that is a potential risk for them not having this in place.

Our next question is, "Do you currently provide all staff training with on harassment or sexual harassment?" Again, yes or no.

And we'll hopefully get the results showing. Okay. So a mix. Forty-six per cent say yes, but just a slight majority of 54% have said no. Again, that's quite interesting, but we'll hear from Ciara if that is maybe, again, a potential risk for people not to have this in place.

But finally, just our last poll, and this is just for us at Legal-Island to see if you are interested in finding out more. If you would like more information on Legal-Island's all-staff training course, yes or no.

 If you are interested in what our eLearning course does cover, a member of our eLearning team will be in touch to provide further information. So, again, we'll not show that result, but we'll reach out to anyone who does want more information. If you're curious at all, you can visit our website at Legal-Island to have a review of all of our other eLearning courses too.

Just before I hand over to Ciara, I do just want to say thank you, as always, to our sponsors, MCS Group. MCS do help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the marketplace. If you're interested in finding out how MCS can help you, you can head over to their website, www.mcsgroup.jobs.

So I'll hand you over to Ciara here shortly. Just a quick reminder, you can ask any of your questions to ourselves. We'll have a break at the very end to go through any of your questions, and we'll try to cover off as many as we can.

I'll introduce our speaker. So Ciara is partner in the employment pensions and employee benefits within LK Shields. She has over 15 years' experience in employment law, specialising in contentious issues and other sensitive issues, including the handling of complex disciplinary and grievance matters.

Ciara regularly represents clients at the WRC and the High Court. She is the chair and founding member of the DSBA Employment Losses Committee, and a council member since 2017.

She is a frequent speaker at our employment webinars, and she also publishes a number of articles in our Employment Law Hub at Legal-Island and also in other publications.

So, Ciara, it is so great to have you here. I will hand over to you now, and I'll be back on to do the Q&A with you at the very end. Thank you.

Ciara:    Great. Thank you, Victoria, and lovely to be here to speak to you all today on this topic that I think is safe to say is a topic in the workplace that is not going away. I think no workplace, in my view, is immune to experiencing instance of sexual harassment or harassment.

Obviously, some sectors have a higher risk factor than others because of maybe historical cultures, hierarchical cultures, or how you socialise, etc. But sexual harassment in the workplace is something that employers really need to be aware of.

You may all have seen recent media coverage on workplace sexual harassment in the Workplace Relations Commission. One in particular that really caught people's attention was a very rather shocking sexual harassment claim taken by a lady, Sharanjeet Kaur v Bombay. Not Bombay, but Pantry, as they were quick to point out. But against a company Bombay, which was an Indian restaurant. And in that particular case, the lady suffered severe examples of sexual harassment in the workplace, fearing for her life, feeling intimidated, etc.

She was awarded the maximum that the WRC can give, which is two years' compensation together with other awards in that case. That case, I think, very much has brought the issue of sexual harassment back under the spotlight.

 There's also been recent media reporting on a particular guard, Lois West, telling the Workplace Relations Commissions about her experience of sexual harassment in Garda headquarters.

You'll probably all be familiar with the very stark examples and incidents of sexual harassment alleged by army members very recently that got quite a bit of media coverage.

And from the statistics there that Victoria outlined to you, they're rather stark. One in five people claiming they may have suffered sexual harassment in the workplace is not something to shy away from.

And unfortunately, from other surveys, and more recently the ICTU survey that Victoria mentioned, have revealed that the statistics that we speak about are not, in reality, reflective of the incidences of sexual harassment in the workplace.

In other surveys, employees report a fear of actually reporting sexual harassment for fear of how it will be considered, treated, the response, depending on who they're alleging the sexual harassment is being perpetrated by. There tends to be a fear, or it certainly appears from reports and surveys that employees are fearful to report incidents of sexual harassment. So I think, really, it's an area we all need to be aware of.

And the surveys that Victoria carried out there at the start are really helpful to note the audience here and the importance of sexual harassment perhaps in your workplace. It's very positive that there was a substantial percentage, 84% of you, with a harassment policy in place. However, a slightly smaller percentage of those providing training in it. We will see as we go through this morning's discussion that training is equally as important as having a policy.

So just the overview there, pretty much what I intend to go through in the next hour, is to discuss what is considered to be sexual harassment in the workplace, consider the legal framework around it, which will include having a look at some of the key legal precedents in there without going into too much detail of the legal issues, and some of the recent case law in the area, which might be interesting, and hopefully provide some helpful tips and advice to you on how best to navigate these, what I would call, sensitive and difficult waters.

So I think, really, in any discussion around sexual harassment in the workplace, a good starting point is to ensure that we all understand what exactly is sexual harassment and what constitutes sexual harassment from a legal perspective, and how is that differentiated from harassment in the workplace, which you may encounter more regularly under the bullying and harassment policy.

First of all, the legal framework for sexual harassment really is derived from, as you'll see there on the slides, the Employment Equality Acts. So they impose a positive obligation on employers to prevent harassment in the workplace. So that's where your trigger point is. You are obliged to prevent harassment as an employer in the workplace. How you do that, we'll discuss as we go through the paper today.

Also, the Safety, Health and Welfare at Work Act imposes a general obligation on employers to prevent bullying and harassment in the workplace, and a key component in that is providing a safe place to work.

 So the two of those are very much intertwined, interlinked, and that's where your obligation to provide a safe working environment is really derived from. And if you know about those two acts and the obligations they impose on you, that's really at its most basic where these obligations derive from.

So the definition of sexual harassment, what is that exactly? I'd say the most explicit and perhaps expressed definition of sexual harassment can be found in the Irish Human Rights Code, 2022 Code of Practice on Harassment and Sexual Harassment. You can see I have it there.

This code was introduced in March 2022 in response to growing concerns about the issue of sexual harassment in the workplace. So it is very much a topic that is in growth, it would seem, because perhaps maybe employees are now more willing to come forward after the #MeToo movement to express their dissatisfaction, or their discomfort, or their concern around incidents of harassment in the workplace.

That code, if you're not familiar with it, for all HR practitioners, I think, is a really important and helpful guidance on how to navigate the waters of harassment in the workplace.

It sets out very clear and helpful guidance on how to implement a policy. It's not just about putting a policy in place. It's about effectively implementing that policy.

So the definition of harassment, then, really comes from the Employment Equality Acts. And also, we have a case of Nail Zone Ltd, which really was a 2010 case. It's kind of the leading case on the definition of sexual harassment.

So what's harassment, first of all? Harassment is any form of unwanted conduct relating to any of the nine discriminatory grounds. I'm sure you're all familiar with what those nine grounds are. They're civil status, family status, sexual orientation, religion, age, disability, race, or member of a travelling community.

This type of harassment is distinguishable from sexual harassment. So that's harassment. Sexual harassment is one where the unwanted conduct, whether it be verbal, nonverbal, or physical, must be of a sexual nature. So that is really the differentiating factor between harassment and sexual harassment.

Both forms are categorised as discriminatory conduct. Whereas harassment discriminates on any of the nine grounds, sexual harassment only discriminates on the gender ground.

The two main categories of sexual harassment that we would speak of as employment practitioners is the quid pro quo, which is effectively a situation of abuse of position of power to engage in unwanted conduct. So from a line manager down the chain. Or there is the type of sexual harassment that creates a hostile work environment. And that's basically where their conduct creates such an environment that is intimidating and offensive to the employee that is the recipient or the victim of the actual harassment.

The conduct itself can take many forms, ranging from suggestive messages, unwanted physical contact, sexual advances, innuendo, text messages, putting up some form of sexual pictures in an office, or pictures that may cause a female worker to feel intimidated or undermined in some way.

 It doesn't have to involve any form of physical contact whatsoever, and it does not have to take place a number of times. So a single incident is sufficient to constitute sexual harassment.

This is very much differentiated from bullying, which you'll all be familiar with. It does necessitate repeated and persistent conduct. An incident of sexual harassment is sufficient. So one incident of sexual harassment can constitute sexual harassment, and they don't have to show that it was a repeated behaviour pattern by the perpetrator.

But the conduct must be unwanted, and that's where the test of subjectivity comes into play. So what I may consider acceptable conduct, albeit that it might be a bit questionable, my colleague may consider it not at all acceptable and to them, it may very much be intimidating and unwanted conduct of a sexual nature that they are not happy or comfortable to deal with.

By way of example, a case a number of years back where a female worker in a hotel complained about a co-worker, who she claimed was treating her in a sexist manner, said she was being called offensive terms that didn't necessarily have a sexual connotation or were not necessarily sexist, but she was unhappy with the comments that were being thrown at her. She'd be laughed at, excluded from conversation by this guy with all his male colleagues.

And in that case, the Labour Court held that the treatment was sexual harassment because it was a direct result of his negative views towards women that was making him engage in this type of offensive conduct to her.

So whilst the comments may not have been directly related to her, they made her feel intimidated and undermined. And in that case, the employer was held responsible for the sexual harassment even though, arguably, maybe the actions themselves were not necessarily sexual in nature.

So I think another important issue to be aware of is where does the actual conduct take place? If you want to move on there, Aaron, again. I probably skipped a slide there. If you can move on to another one there. Where does the actual conduct take place? Does it need to take place in the workplace? And the answer is very simply no. The harassment can occur in the workplace, or the language in the Act is "in the course of his or her employment".

So what does that actually mean? The courts have broadly interpreted this to extend to examples such as attending a conference, attending training, attending lunches, attending work-related social events. Really, all the employee needs to do is establish that there should be some discernible connection between the harassment and the victim's employment.

The courts are interpreting that very broadly and have held against employers where employees had posted comments of a sexual nature against other employees when it was very clearly posted in the context regarding their work, but the perpetrator was outside of the workplace.

So I think employers need to be aware. It's not just good enough to ensure that there's no harassment or that everyone conducts themselves appropriately whilst in the actual physical building, particularly with remote working. Online harassment is very common. Virtual via Teams, messaging, Slack, all of that, that in and of itself can be construed as sexual harassment.

 And when employees are off-site or even if they arrange an event that the employer is aware of but may not be arranged by the employer, it may arguably come in the course of employment. So employers need to ensure that their managers, staff, everyone within an organisation understands that the obligations extend much further than just in the workplace.

And that applies to bullying and harassment equally. It's not just sexual harassment. Those obligations do extend and continue beyond the physical workplace.

So I suppose a carefully-worded policy, which we will deal with, should make it clear that employees are obliged to conduct themselves appropriately and refrain from engaging in inappropriate conduct even where they're outside of the workplace.

It's also important to note that employees can be sexually harassed by not only their co-workers, their employer, their line manager, their boss, but also by clients, customers of the business, contacts of the employer. In fact, the legislation is so broad as to provide for any person with whom the employer might reasonably expect the victim to come into contact with in the workplace.

So that's very broad, and it extends the obligation on you as the employer to protect your employees against sexual harassment or harassing behaviour by customers, clients, people coming into your business, or people dropping off things, delivery guys.

All of that kind of thing that you need to be aware of, that you may be vicariously liable for their actions if you don't have robust policies in place that provide for exactly what an employee should do if they feel harassed by an external third party.

There was a very recent case . . . well, it's a number of years now . . . at the Waterford Institute of Technology where the Labour Court on appeal found against the Waterford Institute in a sexual harassment claim, and they were forced to pay a lecturer €10,000 for harassment perpetrated by a student.

So he claimed that he was not provided with a safe work environment, that the institute had not done enough to protect him when he was feeling harassed by a student. The Labour Court found in his favour and held that, "Yes, you should have done more, and yes, he is protected, and you are responsible for him whilst in employment", and awarded €10,000 to him.

In a very recent case, again, last year in a bar in Waterford, an Uluru bar, the bar owner was ordered to pay out €15,000 on foot of a court award to a female bar worker who claimed compensation for constructive dismissal after she claimed a customer had sent her what she described as vile, humiliating, and disgusting messages or text messages following an incident in the workplace.

The actual extent of the messages certainly was very unfavourable content. But really, where the employer fell down there is . . . I mean, really, it's very difficult to hold the employers responsible for somebody, an external third party, sending a text message to somebody.

But when the employee brought it to the employer's attention, they did very little to help her, or they didn't take her complaint seriously, really. They basically poo-pooed it. And the Labour Court held that the managing director failed to take all reasonable steps to ensure that she felt safe and to ensure that she wasn't exposed to further unreasonable and unacceptable working conditions.

So in that case, really, the employer was held liable for the harassment of a third party. But the court gave significant weight to the fact that they really had ignored her cry for help and didn't try and maintain a safe working environment.

So if an employee raises an issue of sexual harassment in the workplace, they feel it doesn't get adequately dealt with, and they ultimately want to pursue a claim arising out of that sexual harassment incident, where do they go with it?

Ordinarily, they take their claim to the Workplace Relations Commission. As you know, that's our body for adjudication on most employment disputes, and similarly, employment disputes under the Employment Equality Acts. They take their case under the Employment Equality Acts. They can be awarded compensation up to two years' pay.

It's very different to pursuing an unfair dismissal claim, as there's no onus on the Equality Tribunal or the adjudicating officer to consider their losses, etc. What they actually look at is the extent of the alleged harassment and the conduct of the employer, and whether it was egregious or not in the manner in which he dealt with the harassment complaint, or if at all.

What the employee needs to do in those circumstances is the employee needs to prove, if they're taking a claim, first of all, that the harassment occurred in the workplace, as I said, or in the course of their employment. And secondly, they must prove that the employer didn't have adequate policies and procedures in place to prevent the harassment from occurring. This is where having a policy is absolutely critical and will be fatal in a claim if it's pursued if you don't have a policy.

To successfully defend a sexual harassment claim . . . There is a defence, so not all is lost. Even where you believe you are doing everything right within your organisation to avoid sexual harassment or to deal with sexual harassment and you still get faced with a claim, there is what we call this defence of reasonably practicable steps.

Basically, what that is, is where the Employment Equality Acts provide that an employer needs to be able to show, to successfully defend a case, that they have taken steps as are reasonably practicable to prevent sexual harassment occurring in the workplace, and where it did occur, that it took actions to try and reverse the effect.

So that's back to the example of the lady in the bar. It did occur. They didn't necessarily have very robust policies in place, but where the employer really fell down was when she made her complaint, they were like, "Nothing to see here. Not a problem. That was done by a customer".

Had they taken that complaint on board, dealt with her, provided her with support . . . Employees who are genuine victims of sexual harassment, it's an awful situation for them to be in. And some, depending on the extent of it, may need counselling support, assistance, whatever it might be. But these are things that you need to think about if somebody comes to you with a complaint.

And the Labour Court has consistently held that, in order to successfully defend a claim for sexual harassment, it is a basic requirement for a company to be able to show that it has a clear, up-to-date, comprehensive, and readily available policy. And in that policy, there is a clear complaints procedure that is accessible to employees.

They also, ideally, should be able to show that the policy was communicated to staff. It's no good to have a great policy sitting in some desk somewhere, or even to have a really good policy on your intranet, or your work forums, or wherever it might be if employees don't know where it is.

So if somebody has a sexual harassment instant or encounters one in the workplace and they have to come to you going, "Do we have a harassment policy? Is there something I can do?" that's not really a good starting point.

Whilst you can remedy that and give it to them and help them, they should know that there is a harassment policy. They should know how to access that policy, and they should know what to do if they feel harassed in the workplace. That's in an ideal world. That's the standard we're all striving to. That's the standard the Labour Court wants us to get to.

So how do you achieve that? I guess you put down your policies, look at your policy, see if it's robust, clear. Has it taken into consideration the new '22 Code of Practice? Is it accessible to employees? Is it legible? It doesn't have to be really detailed or lengthy as long as it is in legible, understandable format and provides employees with an accessible complaints procedure if they feel they are the victim of sexual harassment.

Ideally, these policies are given to employees at induction stage. Ideally, they sign up to say they've read them, they understand them. Ideally, you would have evidence, and this all in an ideal world, of employees being given an opportunity to raise questions about the policies, to explore the policies, to make suggestions, but ideally, to raise questions to see if they understand the policy that they are being given.

It is really important to provide training on these policies. So back to the statistics in the survey that Victoria carried out, I think 46% provide training and 54% don't, or maybe I have that the wrong way round. But there are quite decent statistics, I would say.

So for those of you on the call, sexual harassment is something that you're all aware of. I've been at talks where nobody was giving training. So I think you can give yourselves a clap on that one. But it is really important that training is given.

And if you are giving that training to protect the business, make sure that you document the fact of training, even in an email or something like that. I mean, it's not just to tick the box from a legal perspective. A sexual-harassment-free workplace is a much more desirable place to work, and that's obviously what we're all striving for, is a safe and harmonious workplace.

So I think it's particularly important in any training that's given that employees are aware of the extent of sexual harassment and that it does extend beyond the employees themselves, because I think that's something that may be a concept that employees may not be aware of.

This is where giving employees proper training on the policy, explaining what it entails, explaining the things we've dealt with earlier in the course of employment, the extent of it, how it can be perpetuated on an employee, and who can perpetrate, is all really helpful in creating an awareness and an environment that will hopefully be free from harassment.

 Just a few examples, maybe. The Costa Coffee case is a case just a number of years back in 2021, where €20,000 was awarded against Costa Coffee for sexual harassment by a manager who posted inappropriate messages in an employees' WhatsApp group.

That's one we regularly come across. They are an absolute no-no. You should have effective social media and IT usage policies, which should clearly state that such conduct is inappropriate and shouldn't happen, and we must conduct ourselves in a professional manner, etc.

A WhatsApp setup amongst employees, that case shows that the employer can be held vicariously liable for the actions of the employee.

In a case like that, again, if that were to happen and an employer can show, "Well, I have a robust policy in place. John knew that he's not allowed to do that. We have given them training. We've made it clear that WhatsApp messages or WhatsApp groups shouldn't be set up. And if they are, they should be only to deal with very work-related issues, etc. Then after that, there's no tolerance around any kind of inappropriate conduct or comments on those type of groups if they're set up", that would have provided them with the reasonably practicable defence.

But in that case, they didn't have anything. In fact, the court in that case was really shocked that the company had no policy on sexual harassment, and particularly in an environment like that, Costa Coffee, where there's a high turnover of staff and a lot of it is lower paid admin roles, that's where this type of harassment or bullying or that type of conduct can occur. This kind of high turnover can result in that. It just can happen in these types of environments.

So in the retail industry, it's critical to have a policy at least in place. In that case, they had no policy. They provided no training. So that's just an example of where you'll fall foul of the legislation if you don't put a policy in place.

Another example of that would be the case of Paddy Browne's Pub. That's more recent in 2022, where the complainant claimed both harassment and sexual harassment during verbal onslaughts by a customer that was in a bar where the customer had engaged in verbal abuse of the staff. And the company denied the claim on the basis that they had policies and procedures in place to deal with these scenarios.

But again, in that particular case, they weren't able to show records of training or bringing the fact of the policies in place to the attention of the employee.

And in that particular case, significant weight was attributed to the fact that the employee had documented her complaints. The employer was aware that there were verbal attacks on the employee by this particular customer. I don't think it was a one-off incident.

And the employer, again, similar to the previous case we discussed, didn't record any of the complaints made, didn't take any real preventative action to avoid the sexual harassment reoccurring, and then just sought to rely on its policy, that it had a policy in place.

So, again, having a policy is not sufficient in and of itself. It's how you actually implement that policy. In that case, it was very much held that clear records of the complaints and how you deal with it is something that you should keep, and this is something that the WRC will be interested to look at or will ask for if an employer seeks to defend a sexual harassment complaint based on the fact that it has policies and procedures in place.

How do you avoid falling foul of the WRC, the $60 million question, if a complaint of sexual harassment is made? What can you do to protect your business?

So not in fear of repeating myself, first and foremost, having a policy. If you don't have a policy, you will find it extremely difficult to defend yourself if a claim is brought against you for sexual harassment. Again, how that policy is implemented is also critical.

The next stage, then, is where a complaint is made. You need to take that complaint seriously. I know we all have the employees who continuously make complaints. Maybe it's the girl who cried wolf or the guy who cried wolf, and on occasion, complaints are not always taken seriously. Each and every complaint that is received should be taken seriously.

Whether it can be dealt with very quickly, swiftly, informally, or however that may be, the complaint should still be taken on board, considered, and dealt with, particularly where there is suggestion of sexual harassment. No employee should have to tolerate any, in my opinion, form of sexual harassment or harassment in the workplace in 2024. So any complaints need to be taken seriously.

You need to document how you react to the complaint. Keep a record of it. If it can be dealt with informally, great, but keep a record of that so that in the event of it not being resolved, ultimately, you have your record of what you did.

Those who are tasked with investigating complaints of sexual harassment, ideally, are properly equipped and trained to handle these complaints. They can be very serious. They can often be against very senior members of management. Hence, the reason why they often go unreported. But that should not be the case. It shouldn't be tolerated. So once they're reported, take them seriously and respond accordingly.

How do you respond? Well, you should conduct an investigation. As with any complaint, whether it be a bullying complaint, or a harassment complaint, a disciplinary complaint, the investigation is critical to the outcome.

The code of practice that I mentioned earlier recommends, perhaps, that it's preferable to have at least two people investigating the complaint. And again, I guess that's really to avoid any suggestion of bias or impartiality or to ensure independence depending on who the alleged perpetrator is. Those tasked with investigating it also ideally have appropriate training to do so.

So the code itself, as I mentioned earlier, is a really effective guidance tool, and I would suggest you would . . . Whilst it might be a bit lengthy to read it, certainly have it as a guidance note in your office to look to if there is an incident of sexual harassment in your workplace.

So it's quite specific around how a sexual harassment claim should be investigated and the rules applying to the investigation. Again, they're very similar to investigating a bullying complaint. So you'll all be familiar.

At a high level, the complaint should be in writing. The alleged perpetrator should be given full details of the complaint. They should be given all relevant statements. Any documentation or evidence gathered by the investigator in relation to the complaint should be given to the perpetrator, including witness statements, interview notes, records of meetings, all of that.

If you're a victim of sexual harassment, that is an awful place to be. Equally, if you are accused of sexual harassment in the wrong, that is a more awful place to be, I would think.

Everyone is innocent until proven guilty. So in order to ensure a fair, transparent, and comprehensive investigatory process, give them everything. If in doubt, give them a copy. Transparency is absolutely critical in these types of investigations.

The alleged perpetrator should be given time to consider the documentation, given an opportunity to respond. And then the code recommends that the investigator or investigators, having completed their investigation and gathered all of the relevant evidence, etc., should then prepare a written report, which will be given to both parties.

And that report would ultimately make a recommendation in relation to whether disciplinary action is warranted or not. Then, obviously, if the report determines that disciplinary action is warranted, that there was enough evidence, I suppose, to justify progressing with the investigation report, then a disciplinary will ensue against the perpetrator.

At that point, also, the employee or the victim should be kept informed of all steps and given necessary support, depending on the extent of the harassment complaint or what they're saying actually happened.

Where the accused or the alleged perpetrator is not an employee, this can be more tricky. Obviously, they can't be compelled to participate in a formal procedure. It won't be possible to secure their participation, and more often than not, there is a reluctance by employers to contact a customer or a client or whomever if an employee raises a complaint of sexual harassment, particularly in a business environment, because there will be the fear of losing their customer or their client. Well, there's also a fear of losing your employee or falling foul of the legislation.

So, look, everything within reason. You have to balance the impact of the alleged harassment that has been proclaimed against . . . not necessarily that I'm saying the business relationship, but you need to balance it up and take a commercial and sensitive approach, or [probative 00:38:44] approach, to how you deal with it.

But ideally, in an ideal world, the business implications of what you are going to do should not be considered. The obligation on you to provide a safe working environment to your staff members should take precedence over all of that.

And if someone raises serious complaints about harassment by a customer or client, or somebody coming into your office, they should be informed that that complaint has been made. They should be informed that you, as the employer, have a legal obligation to investigate that complaint. They should be offered the opportunity to engage in that process. You cannot compel them to do so, but at least you can show you have followed the correct procedures and that you are trying to support your staff member.

 Again, take it seriously. Engage with the staff member. If there is a real reluctance to go out to the third party, then you need to get the employee's buy-in to that, ideally, to avoid a claim. If you don't take action and they subsequently sue you, you may find it difficult to successfully defend the claim.

Another example of . . . So there have been plenty of cases before the WRC and the Labour Court regarding investigatory processes or flawed processes where an employer has failed to take a complaint of sexual harassment seriously.

A recent case in 2022, Socrates Workforce Solutions Ltd, where the WRC held them liable to pay a substantial sum of €90,000 for failing to properly investigate the harassment claim. In that case, particular weight was given to the fact that the employer decided that there was no need to suspend the harasser or move them to another area pending carrying out the investigation.

So where there are very serious instances or claims of harassment, you need to decide, "Well, can they continue to work together?" You need to take a view on that. And if they can't, you either need to move him or her. I shouldn't be saying it's always him. It could be him or her. Or move the victim, I suppose, to another area pending the investigation, or allow the victim to stay at home, etc.

But significant weight in that particular case where a substantial award was made was due to the fact that the harassment alleged was quite severe, but the harasser and the victim were forced to continue to work together during the investigation, which was not ideal from the employee's perspective.

Obviously, suspending an employee who's accused of harassment is a very serious step. And while suspension probably in all of your disciplinary policies is not regarded as disciplinary action, in reality, we all know it's extremely damaging for an employee to be suspended, and particularly so in the context of a sexual harassment allegation. So I would proceed with caution in that regard.

Every case turns on its own facts. That case was particularly stark. So I'm not advocating that you suspend any alleged perpetrators, but I think you do have to look at, "Is there a reality? Is it legitimate in this particular case to suspend because the extent of the sexual conduct was so severe as to justify it? Or will it be sufficient to move either the victim or the perpetrator pending the outcome of an investigation?"

You may also be familiar with the An Post case, which got a lot of media attention back in 2021, where the maximum award was given to the complainant in that case of two years' pay. It was €60,000 in that case, given the level of salary, but it was nonetheless the maximum award, which is not very common.

And in that case, the WRC applied the European principle of the Von Colson principle, which basically is that awards must be effective, proportionate, and dissuasive.

And in that case, the AO wanted to award the maximum that he could in order to show his dissatisfaction at the manner in which the sexual harassment complaint had been handled internally.

They hadn't conducted a fair investigation. The incidents of harassment in that case, you may recall, were quite stark. They were physical. They were unwanted conduct where someone was placing their hands on an employee in places that she obviously clearly did not want to be touched. So it was an extreme case of harassment.

 An Post did not cover itself in glory in the manner in which it conducted its investigation. And the WRC sought to highlight the importance of the employer's conduct in these cases and taking these complaints seriously, and in that case, applied the maximum award, I think, just to do that.

I'm conscious that we'll have to wrap up shortly, but it's really clear from the case law, the few I've touched upon there, but just in general terms, how to deal with these types of cases.

In order to successfully defend a complaint of sexual harassment and to rely on that defence I spoke about, the really practicable defence, it's really what I would call, to simplify it, a three-pronged approach.

One, you should have an up-to-date policy, and this isn't just to defend sex harassment in the workplace. This is to ensure you have a nice, safe working environment, as I mentioned earlier. An up-to-date, comprehensive, and available policy that is accessible to all.

You can show training, ideally, to all at induction, and even better, best practice would be regular induction training. I know that's maybe putting a significant burden on employers. But even yearly or whatever training online, or a 20-minute training on, "So this is the update. Are you all still aware? Any questions?" That type of thing is invaluable in the face of a harassment claim or to defend a harassment claim.

And number three is if a complaint is made, you can show you acted appropriately and an appropriate response was taken. You took it seriously, you reacted, and you took steps in line with your policy and conducted the type of investigation that I've outlined above.

If you do this, you can defend claims, whether they be genuine or not, that are pursued against you, the employer, for failure to provide a safe working environment.

One such example was a fast-food case back just about three years ago where the WRC . . . whilst it was held that sexual harassment had occurred and they accepted the complainant's evidence, what they didn't accept was . . . And they actually went so far as to say they were impressed with her evidence and that she had experienced unwelcome verbal conduct of a sexual nature in the workplace.

But they were satisfied that the employer had acted appropriately. Once informed of it, they had acted in a reasonable fashion, had relied on its policy, had a policy in place, were able to show that employees should know what to do when they encounter such inappropriate conduct, and they successfully defended that case.

Similarly, in another case more recently . . . No, actually, it's an older case, but it's one that's often used in the defence of these types of claims. It's the Stryker Orthopaedics case. This is where SIPTU were acting for the employee and they claimed that the investigation was fundamentally flawed. It was a sexual harassment complaint where they said that they hadn't properly conducted it in accordance with their policy.

However, the court didn't accept their evidence and was satisfied that the employer was able to demonstrate, "No, actually, we did. Here's the evidence. Here are the emails. Here's the training". And they, again, were able to successfully defend that case.

 So if you have that three-pronged test in mind for providing a safe work environment, it will then help you in defending sexual harassment complaints in the future.

The worst thing for an employer in my book is if a complainant makes a sexual harassment complaint, you go through a process, and you ultimately find that the conduct engaged in was inappropriate and that particular employee is dismissed, and then the perpetrator takes a case for unfair dismissal because you haven't engaged in the proper process. And there are many cases. There are cases and examples of employees taking those types of cases.

There was one, I know, where the employee leaned towards a female colleague and made a gesture for a kiss and kissed her inappropriately. That evidence was accepted. It was deemed to be sexual harassment. However, he was then ultimately summarily terminated. The employer took the view, "Zero tolerance. We don't condone any such conduct in the workplace".

But unfortunately, the WRC in that case held that the punishment was not proportionate to the crime and that it was unfair from a procedural perspective. So then he gets an award, and for the employee who is the victim, that's a very hard pill to swallow.

Again, there was another case more recently where a store manager was awarded over €15,000 for his unfair dismissal when he had been found guilty of hugging, inappropriate behaviour, physical touching of staff, unwanted touching of staff, etc., but they hadn't engaged in a proper and fair investigation in the lead-up to his dismissal. He pursued an unfair dismissal claim, and he was successful.

You really want to avoid that, so a clear and transparent investigatory process is critical to successfully defending such a claim.

So I guess, really, just to recap before I put you back to Victoria how to best avoid and how best to maintain a harassment-free environment. Again, I know I'm absolutely repeating myself, but just establish a clear, comprehensive policy, provide regular training, establish confidential reporting mechanisms if you can so that it's clear and accessible to the employer who they need to go to.

If somebody reports an incident of sexual harassment, support them. Take it seriously. Act on the complaint.

And lastly, I'd say review, review, review. Continuously reviewing your workplace policies is a good way to ensure that they're up-to-date, that employees are aware of any changes, and that you bring them to the employee's attention.

I mean, this is not a legal observation. This is more of a practical observation. But in essence, it's the people at the top of the organisation and how they respond to allegations that are received in the workplace that influence really how the workplace feels and, more importantly, how they will react to incidents of sexual harassment.

And I guess people are coming to us when they have a problem, but there's often too much concern around being seen to do the right thing rather than actually doing the right thing. So I guess from a HR perspective, it's helpful for you guys to ask the question of your business, or the people within your business, or the management/C-level within your business, "Is it people-focussed, or they're just worried about compliance?"

If it's people-focussed, the desire will be there to stamp out the unwanted conduct, and the likelihood is that if there is unwanted conduct, it will be dealt with appropriately. If it's just about compliance, the great policy will be there but unlikely to have been properly implemented, which may be fatal if a claim is ultimately pursued.

So I think that's it, really, for me. Victoria, if you have any questions, or if anyone has any questions, I'm happy to field them. I hope I haven't repeated myself too much around having a policy in place.

Victoria:               No, that is great. Thank you so much, Ciara. I think everyone can agree there was so much that was covered there, but I think you've definitely outlined just the serious consequences if employers feel to take action appropriately. Thank you so much.

We do have a number of questions here, so we'll try to get through as many as we can that the time allows us. One question here is, "Does the alleged perpetrator have the right to cross-examine the complainant and/or any witnesses during an investigation of a complaint?" What are your thoughts there?

Ciara:    Yeah, it's a good question, and this is one that crops up very often. I would say as part of the investigatory stage, the answer is no. If you make your investigation a fact-gathering process, then there is no inherent right to natural justice and fair procedures.

So, basically, the investigators are tasked with gathering in all the evidence, compiling it in chronological order, asking the right questions, meeting the right people, putting it all together in a report. And the most they should do is give their view as to whether disciplinary action is merited or not.

If they are tasked with making an actual finding as to whether the sexual harassment occurred, then the answer is yes. And this is often where employers fall down, is in even the appointment of the investigator. Our view is to keep it to a fact-gathering, because they're not actually establishing the facts, they're gathering the facts.

Then it does mean that there's ultimately going to be a disciplinary action, more than likely, if there is sufficient evidence to show there was some type of inappropriate conduct going on. In the ultimate disciplinary, then, the question comes up as to whether they can be cross-examined or not.

And in any case, where the perpetrator may ultimately be terminated arising from their misconduct, the best practice is that they would be afforded the opportunity to cross-examine.

However, I would very much underline the however in the case of a sexual harassment complaint, because that's a scenario whereby the victim probably feels intimidated, undermined. They're not going to be comfortable no more than a criminal prosecution standing up and giving evidence by this person who has made them feel this way.

So you can ask the victim are they willing to, if the perpetrator looks for it. And if they're not, how we get around that is offering a written response. So say, "No, she's too upset. It's causing her too much stress". It's very unusual for a victim to want to be cross-examined. Some are strong enough, and they're able for it.

 To have a bulletproof process with no risk, I would say the answer is yes. But we have to adopt a reasonable, practical approach. And within reason, I would say adopt a written response if they look for it, if the victim is very concerned.

Victoria:               I think that's a really good answer for that, so thank you.

One question just following from your discussion around suspension. If you are suspending an employee following a very serious allegation of sexual harassment, should you also suspend the person making the allegation in the interest of fairness while the investigation is being conducted? What are your thoughts on that?

Ciara:    I would say absolutely no. The only reason you'd suspend an employee who is accused of wrongdoing is where it is necessary to carry out the investigation.

And there is very clear case law in this, more so in the High Court rather than in the WRC. What you will find is if you unfairly suspend an employee, they will go to the High Court to seek an injunction restraining you from doing it, because there's no doubt suspending someone in those circumstances impacts their reputation. We can dress it up whatever way we like, but it does impact their reputation.

So I am always very reluctant to advise employers to suspend. We need to carefully look at the facts of each particular incident.

The victim should not be suspended. The victim has done absolutely nothing wrong. They're not in the spotlight. There's no suggestion it's a spurious complaint. Even if it is, you can't take that view until you investigate it.

The victim may not wish to be in the workplace, and that's a different situation. And you may wish to offer the victim the opportunity to stay at home pending the outcome or, as I said, at a minimum, to avoid having to work with the perpetrator.

Victoria:               Absolutely. It's important to safeguard themselves, but it's not a suspension for them.

Ciara:    Exactly. Yeah.

Victoria:               One question, and I suppose this is a specific scenario that may come up particularly in small companies. What do you do in the case where the sexual harassment is towards the HR manager and they manage these cases and train staff, and that particular victim is then afraid to come forward? What can companies do in that scenario where it's the HR that's in the potential wrong?

Ciara:    Yes, good question. And it always complicates matters, I think, if HR are in the spotlight because they are the ones we all turn to, to help us and support us and guide us through all of these processes.

So I think, in reality, how you have to deal with that is it has to be a preventative step. Your policy needs to clearly state what happens in those circumstances.

And if you have a very small workforce, your policy can have a tiered approach as to who you report to, like the HR director. If the HR director is implicated, please go directly to the CEO. If the CEO is implicated, please go to the HR director.

Whatever way the hierarchical structure is, an employee, back to the point of having an accessible complaints procedure, needs to know that their complaint will still be taken seriously, even if it is against HR.

So they should ideally know from the policy where to go, but if they don't . . . In training, I suppose, or HR needs to tell them in induction, "Look, obviously, if it's anything to do with us, you can go to the CEO or go to your line manager", or go wherever. It shouldn't be just because HR are under the spotlight that the employee can't make the complaint.

Where HR have given the training, the HR person will probably give that in their defence, that they fully understand what constitutes harassment and this conduct couldn't constitute harassment, etc.

But I think the company could rely on the training given as a defence, like I've mentioned there, if there is training given, but they would also need to ideally be able to show that the employee knows where to go.

Look, I know this is all in an ideal world, but it does happen. HR people do get complained of. And obviously, they're the ones who have to make the awkward decisions in organisations and often become the subject of a complaint just absolutely unfairly and without any basis whatsoever. So I think companies should think about that when implementing their policies. It's a good question, though.

Victoria:               Absolutely. Another question that's sort of similar to that. Is there a recommendation or best practice for seeking out an independent investigator, particularly if it's been requested by the victim? So would you recommend that in some instances?

Ciara:    Well, in fact, the question you've just asked there, the previous question, it could be a way around dealing with that type of a tricky situation.

Generally, policies will provide that they will be dealt with internally. In sexual harassment complaints, depending on who the alleged victim or perpetrator is, they are the type of complaint that can lend themselves to external third parties.

I had a very significant case in a company quite recently where they just felt . . . It wasn't against HR or anyone, but it was against a senior member of management. They were not comfortable. And the example was quite extreme that no one in the business was comfortable actually taking on the investigation. So, in that case, I suggested, "Yeah, let's go externally with this".

My reluctance to go externally with complaints tends to be that you lose control of the process as the company and the costs spiral and that kind of thing. But obviously, in the interest of fairness and natural justice, I would say yes, it is something that should be considered.

In a small business, unfortunately, it has to be considered more. Generally, in group structures, we'd say, "Well, can you go up the food chain? Can you go to the UK? Is there someone in the U.S.? Is there someone who can do it?" In a smaller organisation, there isn't.

And there are many really good HR consultants out there who will do those types of investigations, or barristers or lawyers who will do those types of investigations and provide a very independent and impartial view.

 Victoria:               Yeah. Absolutely. And it can go to the defence, that the company is taking this much action.

Ciara:    Precisely. It totally works in the employer's favour ultimately if they do that, because it shows they're willing to spend money, they're willing to expose themselves, and they are really taking it seriously. It's just more we tend to act on the employer's side. There tends to be a reluctance to lose control of the process, but it's certainly something to consider.

Victoria:               Just one final question before we finish. Is there a timeframe or a best practice as to how often refresher training should take place?

Ciara:    There are no statutory guidelines or time periods, per se. I would say, realistically, a year or two years is adequate. That might even be too onerous on a business. But if there are changes in the law, it should be brought to their attention.

If you have it part of your induction process, then everyone that comes in is learning about sexual harassment or harassment or bullying. I mean, they're all intertwined, so I'm not advocating just sexual harassment training. I think if you're doing it, tick all the boxes. That will help you.

I mean, depending on the size of your organisation . . . Huge organisations, you might need to monitor it a bit more carefully, or you'd have more staff and resources to do it. But I'd say if you were showing a year or two years, that would be pretty adequate.

And if you have proper policies in place as well, you can send them to the staff and say, for like the internet usage/social media policy, "Does everyone understand this? Does anyone have any questions?" They could be sent around sporadically, like, "Maybe you'd like to cast your eyes over this again, guys, every year or six months", or whatever it might be. "Do you have any questions?" See what they come back with.

Victoria:               Yeah. And I suppose if there's been an incident or a recent investigation, it might even prompt you, "Well, actually, this is now a good time to take a refresher training for everyone".

Ciara:    Yeah, take a proactive step. Exactly.

Victoria:               Well, that's great. We have just gone over our time here. So apologies if your question didn't get answered. But if you have any specific legal questions or queries, you can obviously reach out to Ciara and her team, and I'm sure that they'd be more than willing to help and advise you.

Ciara:    Absolutely.

Victoria:               But I just want to thank you, Ciara. It was a really great webinar. I think you covered so much in such a short frame of time. So thank you again.

Ciara:    Thank you.

Victoria:               Hopefully, everyone has gained a lot from today's webinar. But if you are interested in attending further webinars, please do go on to Legal-Island's website. You can also see some of our eLearning courses that we have available for you.

Well, thank you again so much, and I hope that you found it really useful. I hope that you have a great rest of your day. So thank you all so much.

 Ciara:    Thank you. Thanks, Victoria. Thanks all.

Victoria:               Thanks, Ciara.

Ciara:    Take care. Bye.

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