New code of practice on harassment at work
The Equality Authority has prepared a new code of practice on harassment at work –the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 SI 208 of 2012
This code replaces the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002.
The code is admissible in evidence and, will be taken into account in determining any relevant question arising in any criminal or other proceedings. That said the code does not impose any legal obligations nor is it an authoritative statement of the law.
What action do I need to take?
Review existing harassment and complaint procedures to ensure they comply with Part 4&5 of the new code. Put in place communication/consultation strategies to alert customers/suppliers/contractors/employees that policy in place/revised and consequences of non-compliance. Consider insertion of harassment clause in contracts with contractors/ suppliers and other non-employees covered by the code.
To whom does the code apply?
It applies to all employments, employment agencies, trade unions, employer bodies and professional bodies that are covered by the Employment Equality Act.
What kind of harassment does the code apply to?
The code deals with sexual harassment on the gender ground and harassment on the eight other discriminatory grounds, namely civil status, family status, sexual orientation, disability, age, race, religious belief, membership of the Traveller Community.
Use of private investigators in misconduct case
Patton v Vedanta Lisheen Mining Limited (decision of the EAT dated 27 April 2012)
The claimant suffered an injury to his lower back at work. He was referred to the company doctor who diagnosed an injury to his spine and recommended that he was not fit for manual handling but he was fit for general office work and light duties. The claimant was allocated a variety of light duties. The claimant continued to complain that he had problems performing the lighter duties.
As a result of a lack of improvement in the claimant’s condition and in light of an MRI finding showing no significant abnormality, the employer engaged a company of private investigators. The claimant was observed carrying sheets of metal and lifting them into a trailer without any obvious physical distress or restriction. Two days later at a review with the company doctor the claimant indicated he had continuous upper back pain; that he could neither stand nor sit for any prolonged period and was unable to lift his child or his child’s buggy to put it in the car.
Following this review the claimant was observed by the private investigators leaning into a car and lifting his infant and buggy. He was also observed by the employer’s head of safety walking without a limp but on seeing the head of safety he started to limp. Having received these reports the employer held an investigation meeting. The manager outlined the claimant’s inability to perform the lighter work duties assigned to him which inter alia were that he was unable to stoop, to hold his baby and that he could not work beyond 10.00 a.m. most days. The claimant agreed with this. The manager then informed him that, contrary to his representations, they had information that he was seen lifting sheets of metal and holding his baby. When asked if he wanted to say anything the claimant indicated that he did not. The claimant was suspended on full pay pending a disciplinary hearing. The letter of invitation to the disciplinary meeting set out the allegations and went on to inform the claimant that as the behaviour referred to might constitute gross misconduct, a disciplinary meeting could lead to disciplinary action up to an including dismissal. Enclosed with the letter were the reports of the head of safety, the company doctor and two private investigators.
The disciplinary meeting was conducted by the mine manager, the HR manager and the claimant’s manager. The claimant was present with his trade union official. The claimant’s manager outlined examples of the claimant’s inability to perform the lightest tasks giving as examples his inability to walk across the yard to measure tyres, to lift file boxes, bend down to pick up paper for shredding and sit at his desk for more than a short period.
At the meeting the claimant provided his written responses to the reports given to him. The meeting was cut short by the claimant’s union official who, on learning that private investigators had been involved, wanted to make a complaint under the Data Protection legislation. A further meeting was held to afford the claimant and/or his representative the opportunity to cross-examine the witnesses who had provided the reports to the respondent. Video footage and other documentary evidence were furnished to the claimant and he was given an opportunity to furnish any further information he might wish to have considered before the respondent made its decision. The claimant was dismissed for deliberately misrepresenting his inability to work due to the extent of his injury.
The EAT said that the function of the Tribunal is to consider against the facts what a reasonable employer in the respondent’s position and circumstances at that time would have done and decided.
The Tribunal was satisfied that the employer having considered the reports before it and the claimant’s responses, including his written responses, had reasonable grounds for believing that the claimant was guilty of the alleged misconduct. On asking itself whether the sanction of dismissal was disproportionate the Tribunal was satisfied that based on its genuine belief that the claimant was misrepresenting his inability to work over an extended period while in receipt of full pay from the employer that the sanction of dismissal was not disproportionate. Furthermore, it was an express term of the claimant’s contract of employment that “the company requires that the employee’s honesty and integrity be beyond doubt”.
Comment: This case is interesting because of the use by the employer of private investigators and the acceptance by the Tribunal of such evidence. It is also of interest in that it reinforces the importance of sanitising the disciplinary and appeal process by ensuring the involvement of different personnel at each stage and, where that is not possible, demonstrating that the person who attended both the disciplinary and appeal stages was not involved in and did not influence the decision making process on appeal. The Data Protection Commissioner has set out strict guidance on when and how private investigators should be employed and regard should be had to such guidance to avoid an adverse finding by the Data Protection Commissioner separate to any EAT hearing.