1. Introduction
Section 14A of the Employment Equality Acts 1998 to 2021 prohibits harassment in the workplace on any of the nine protected grounds. The section also imposes a positive obligation on employers to prevent harassment. Failure in either respect exposes the employer to liability.
This article sets out the framework for harassment claims, the statutory defence under Section 14A(2), the typical fact patterns that arise, and the practical considerations for employers in maintaining a harassment-free workplace.
2. Legislation and Case Law
Section 6(1) of the Employment Equality Act 1998 (as amended) prohibits discrimination on any of the nine protected grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. Section 6(2) of the Act sets out the protected grounds in full. Section 8 of the Act applies the prohibition to all aspects of the employment relationship including access to employment, conditions of employment, training, promotion and dismissal. Section 14A of the Act prohibits harassment and sexual harassment on any protected ground. Section 74 of the Act prohibits victimisation. Section 85A(1) provides that where, in any proceedings, facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination, it is for the respondent to prove the contrary. The leading authority on Section 85A is the Labour Court’s determination in Southern Health Board v Mitchell [2001] ELR 201, in which the Court held that the complainant must, in the first instance, establish a prima facie case of discrimination before the burden shifts to the respondent.
Section 14A(7) of the 1998 Acts defines harassment as any form of unwanted conduct related to any of the discriminatory grounds being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
Section 14A(1) makes the employer responsible for harassment of an employee by other employees, customers, business contacts or any other person with whom the employer might reasonably expect the employee to come into contact in the course of employment.
Section 14A(2) provides a statutory defence: it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the person from harassing the victim or any other person and, where the harassment has occurred, to reverse the effects of it. The defence has been the focus of substantial WRC and Labour Court jurisprudence.
The Code of Practice on Sexual Harassment and Harassment at Work (S.I. No. 208 of 2012) provides guidance on the steps that an employer should take to prevent and address harassment. While not binding, the Code is admissible in evidence and departure from it may be material.
3. Decision
Harassment cases before the WRC engage two distinct issues: whether the conduct complained of amounts to harassment within the Section 14A definition; and, if so, whether the employer has discharged the Section 14A(2) statutory defence.
On the first issue, the test is whether the conduct was unwanted, related to a protected ground, and had the purpose or effect of violating dignity and creating an intimidating environment. The test has both subjective and objective elements: the complainant’s perception is relevant, but the conduct must also be objectively capable of meeting the threshold.
On the second issue, the employer must demonstrate practical steps. Evidence of an anti-harassment policy, of training, of effective complaint mechanisms, of prompt investigation, and of action taken in respect of any substantiated complaint is required. A policy on paper is not sufficient: the employer must demonstrate operational effectiveness.
Compensation in harassment cases reflects the seriousness of the conduct, the impact on the complainant, and the adequacy of the employer’s response. The Section 82 ceiling of 104 weeks’ remuneration provides the upper limit.
4. Takeaway
VHarassment claims engage both substantive and procedural elements. The employer faces direct liability for harassment that occurs in the workplace, subject to the Section 14A(2) defence.
For employers, the practical advice is to maintain a comprehensive anti-harassment policy that addresses all protected grounds, to provide regular training to managers and staff, to maintain an effective and confidential complaint mechanism, to investigate complaints promptly and thoroughly, and to take appropriate action in respect of substantiated complaints.
Employers should be particularly alert to harassment by third parties. The Section 14A(1) responsibility extends to harassment by customers, business contacts and others. The employer’s response — including, where appropriate, escalation with the third party’s employer or removal of the employee from the relevant environment — must be evidence-based.
For employees, the practical advice is to document any harassment, to raise it through the employer’s grievance procedure, and to obtain legal advice if the response is inadequate.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
