In previous employment law blogs we have discussed legal aspects of harassment in the workplace and the legal implications of the #MeToo movement. One topical element of this includes sexual harassment issues in third level institutions.
Some of the legal points we focused on include the duty on employers to provide clear complaint mechanisms for employees and to efficiently investigate complaints actually made.
The recent Labour Court decision in Walsh v Waterford Institute of Technology EDA1931, decided under the Employment Equality Acts is very much in point here and addresses a number of interesting aspects of this area.
The case involves harassment by students of an employee (a lecturer) and how the organisation responded to complaints by that employee.
The claimant is a lecturer at Waterford IT (“WIT”). In 2014 she complained of inappropriate treatment by a group of male students. This included allegations of inappropriate sexual references and questions put to her of a sexually suggestive nature.
She attempted to complain about these matters to the WIT authorities. It appears that the issue was initially treated as a student disciplinary matter but that the Student Disciplinary Committee did not promptly process the complaint due to a lack of administrative support. At the hearing, evidence was also offered which may suggest some overall uncertainty on the employer’s part on what exactly was under investigation and what procedures were being used.
Some actions were eventually taken by management, which included presentations from management to the class in question on dignity at work and a splitting up of the class.
Ultimately the Labour Court considered whether the employer had discharged its duty to take reasonable steps to prevent harassment in the workplace. Answering in the negative, it rejected the employer’s defence that it had taken all practicable steps to avoid the sexual harassment. In particular, the Court ruled that WIT had failed to take sufficient steps to avoid a recurrence of the incidents. In awarding compensation of €10,000 to the lecturer the following factors were influential:
- An apparent difficulty in identifying the correct complaint process. The employee claimed that it was difficult to locate the correct policy on the employer’s website;
- The failure by the employer to prove active promotion of the relevant policy or to illustrate that there was a strategy in place to bring policies and their contents to the attention of students;
- Initial delays in progressing the complaint once made.
- When management addressed the class, the issue of sexual and gender harassment were apparently not specifically raised.
The court also ordered WIT to review the operation of its Dignity and Respect policy including the effectiveness of arrangements to communicate the intolerance of sexual harassment to students and the effectiveness of arrangements to respond to complaints by teaching staff of sexual harassment by students.
The case served as a useful reminder to all employers about the duty to have clear and accessible complaint mechanisms, the duty to investigate promptly and the need to act quickly and meaningfully to prevent further occurrences of inappropriate incidents.