With the recent allegations regarding Harvey Weinstein and other prominent figures in the entertainment industry dominating the news in recent months, there has been a renewed focus on sexual harassment worldwide.
In Ireland, sexual harassment is prohibited under the Employment Equality Acts which defines ‘harassment’ as “unwanted conduct” relating to any of the nine discriminatory grounds and ‘sexual harassment’ as any form of “unwanted verbal, non-verbal or physical conduct of a sexual nature.” The conduct in question must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” The common law principle of vicarious liability has been placed on a statutory footing under the Employment Equality Acts and sexual harassment claims can be brought not only against the alleged harasser, but also against the employer.
The prohibition is wide reaching, with ‘unwanted conduct’ broadly defined to include acts, requests, spoken words or gestures, and other forms of unwelcome conduct. Furthermore, the prohibition covers sexual harassment not just at work, but also on training courses, work trips, and other work-related activities including social events. Employers can be held liable for sexual harassment perpetrated by employees and non-employees (clients, customers and other business contacts) where the employer has some control over the perpetrator.
Financial cost to employers
Claims relating to sexual harassment can be costly and can take a variety of fora. Complaints can be made to the Workplace Relations Commission under the Employment Equality legislation or for constructive dismissal. Claims for gender discrimination can be brought directly to the Circuit Court and the Circuit Court is not limited by the usual jurisdictional constraints in the amount of compensation it may order. Awards under Equality legislation can be high. Atkinson v Carty is a notable example of a high award made by the Circuit Court in a case which involved serious sexual harassment. In this case, the Court awarded €137,000, reduced by 25% because of contributory negligence. Employers may well face personal injury claims in the High Court, where an employee alleges that they have suffered psychiatric injury as a result of improper treatment and that injury was foreseeable. This form of litigation carries the added risk of an award of costs being made against the employer in successful claims.
The nature of claims involving sexual harassment is such that irreparable reputational damage may be suffered by an employer at the heart of a complaint. While claims at the Adjudication stage of the Workplace Relations Commission are held in private, appeals to the Labour Court are held in public, as are personal injury claims.
How can employers protect themselves?
In order to avoid being held responsible for sexual harassment suffered by an employee, an employer is required to have taken reasonably practicable steps to prevent the sexual harassment from occurring, to reverse the effects of it, and to prevent its recurrence. Employers should ensure that they have a carefully drafted policy which specifically deals with sexual harassment and which conforms to the guidelines in the relevant statutory instrument. Many employers’ policies are legacy items which are insufficiently nuanced and will provide limited protection to staff and employers. However, it is not enough to simply update your policies. Employers need to ensure they provide appropriate training on avoidance and how to deal with complaints. A workplace free from sexual harassment benefits both employees and employers and protects employers from costly claims and the negative publicity that surrounds them.