The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (“Code of Practice”) was published in June this year. Prepared by the Equality Authority, the Code of Practice aims to give practical advice to employers and employees on what is meant by sexual harassment and harassment in the workplace, how it may be prevented, and what procedures to follow in dealing with the problem and to prevent its reoccurrence.
This Code of Practice updates the Employment Equality Acts 1998 (Code of Practice) (Harassment) Order 2002, and primarily addresses a number of anomalies and procedural matters. The main changes are as follows:
- broadening of the definitions of “harassment” and “sexual harassment”;
- the original discriminatory ground of “marital status” has been amended to “civil status” to incorporate a civil partnership as outlined under the Rights and Obligations of Co-habitants Act, 2010;
- dealing with an investigation of a complaint has been extended to include the provision that “it is essential that the principles of natural justice be adhered to.”;
- a provision that “external assistance may be necessary to deal with complaints in circumstances so as to ensure impartiality, objectivity and fairness in any investigation;
- ensuring that staff have access to equality policies, including by means of certain measures “to provide, where necessary, for the translation of policies and procedures into languages other than English as appropriate with provision of interpreters.”; and
- the maximum remedy has been amended from 104 weeks’ pay to 104 weeks’ pay or €40,000, whichever is more.
The requirement to translate policies and procedures, where necessary and appropriate, will prove an additional cost for employers. Employers should also be aware that the change of the maximum remedy to 104 weeks’ pay or €40,000, whichever is more, will mean that employees earning less than €20,000 can now potentially receive a larger sum than was previously the case.
Under the current legislation, employers may be held vicariously responsible for the sexual harassment and harassment suffered by employees in the course of their work. This is unless the employer can show that it took reasonably practical steps to prevent sexual harassment and harassment from occurring, or sought to reverse the effects of the harassment and prevent its re-occurrence.
In most cases, large employers have in place harassment and sexual harassment policies and procedures. However, on foot of this new Code of Practice, now is a good time as any for employers to ensure that their procedures in this area are up to date and that their employees are fully aware of their existence and have access to the procedures.