Introduction to Sexual Harassment Law in Ireland
The Employment Equality Acts 1998 – 2015 make it abundantly clear that the harassment or sexual harassment of any employee is against the law.
In 2012, the Department of Justice, Equality and Law Reform published an updated Code of Practice on Sexual Harassment and Harassment. According to the Irish Human Rights and Equality Commission, the Code “seeks to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected”.
Research conducted by the Dublin Rape Crisis Centre has revealed some alarming statistics in this area. Out of 940 people surveyed, 712 of them stated that they have experienced sexual harassment. Out of these 712, 421 or 59%, stated that sexual harassment had occurred in their place of work. Most said that this harassment had occurred at work-related events, meetings or conferences.
What is perhaps the most shocking is that only a mere 16.5% of victims decided to report what had happened to them.
When we think of sexual harassment, often we think of women. However, it is important to realise that men can be victims too. Statistics from the USA show that almost one in every five complaints made to the Equal Employment Opportunity Commission about sexual harassment in the workplace, come from men. Furthermore, the number of males who are reporting experiencing sexual harassment in the workplace is increasing year on year.
Sexual Harassment Law in Northern Ireland
There have been some very recent decisions in this area in Northern Ireland which are worth noting.
The first of these is an anonymised decision which the Chief Commissioner of the Equality Commissioner for Northern Ireland described as being a “shocking story” which highlighted “a toxic laddish culture that shows scant respect for female colleagues”. The Commission also stated that they had chosen to highlight this case because “it shows yet again how some employers are still failing to protect women from serious sexual harassment in their workplaces and failing to properly investigate complaints”.
This case arose because the woman in question had been in a meeting at work when a senior male manager told her to stand up and turn around. He then slapped her on the bottom with a ruler and told another male colleague “I’m sorry I had to”.
The woman submitted a formal grievance, which her employer chose not to acknowledge for 10 days. After some time, the employer did carry out an investigation.
The woman’s grievance was upheld. However, the letter containing this outcome was very critical of the woman. In it, she was accused of both acting and dressing in a very provocative manner. The complainant resigned.
The woman settled the case for £90,000.
Sexual Harassment and the Workplace Relations Commission (WRC)
Charlotte O’Brien v Deadline Direct Limited t/a Deadline Couriers (ADJ-00036160)
As recently as 20 April 2023, the WRC handed down a significant decision on sexual harassment in the workplace.
This case arose because while at work, a male colleague came up behind the complainant and tried to pull her trousers down. At the time, the complainant’s hands were full so she could not defend herself. The room was full of other male colleagues. None of these men made any attempt to assist the complainant or pull the perpetrator up on what he had done. To make matters worse, the perpetrator then proceeded to joke about and mimic what he had just done to other female workers. The complainant also gave evidence under oath that the man in question had been making comments about her weight and appearance for many months.
What is interesting about this case is how little the respondent did in response to the complainant’s complaint. As soon as the complainant left the room after the incident in question, she went and reported it to her day manager. This manager did nothing other than to tell her that he would report the incident to the CEO. The complainant was expected to return to her normal duties and continue to work alongside the perpetrator.
Furthermore, the complainant was not provided with copies of any of the company’s policies relating to discrimination, harassment or sexual harassment at work.
Even though the complainant had reported the incident on 27 May 2021, she was not interviewed about what had happened until 02 July 2021.
As a result of what had happened, the complainant was certified as unfit to work by her GP. The respondent paid her for the first few weeks but then stopped without notifying her. The respondent put significant pressure on the complainant to return to work although she was clearly not fit to do so.
As of the date that this case was heard, the respondent had failed to provide the complainant with any findings from the investigation. The complainant told the WRC that “the respondent had done nothing to address the culture in the workplace that allowed the harassment to occur and to be tolerated in the way that it was”.
The Adjudication Officer found that “the respondent has failed to rebut the prima facie case of discrimination established by the complainant given the failure to implement any protective or preventative measures before the sexual harassment and the wholly inadequate measures taken after the incident”. He continued to state that a proper investigation report could have £reversed some of the effects of the discriminatory treatment”.
In his decision, the Adjudication Officer referred to A Store v A Worker (EDA 0915). In discussing this case she stated that “even if an employer has a sexual harassment policy in place, it is incumbent on them to ensure that it properly understood by managers responsible for its implementation, which was not done in this case”.
In discussing redress, the Adjudication Officer noted the case of Von Colson and Kamann (ECR 1891) where it was made very clear that awards need to be “effective, proportionate and dissuasive”.
In an unusual move, the Adjudication Officer order that the respondent pay the complainant the maximum permissible award of two years salary which in this case amounted to €50,440.
We would argue that awarding this maximum compensation amount to the WRC sending a very powerful and important message that sexual harassment will not be tolerated in Irish workplaces.
Nadine Harty v Causeway Hospitality Ltd Greenway Manor Hotel (ADJ-00036502)
This is another recent case, involving sexual harassment, worth noting.
In this case, the complainant was subjected to persistent sexual harassment by a male colleague. This involved him grabbing her wrists, stroking her harm, grabbing her around the waist and on one occasion biting her on her shoulder. The man in question also whispered in her ear, blew on her neck and made extremely grotesque and inappropriate comments about underage girls.
Despite the complainant making numerous complaints about this, the Adjudication Offer stated that “they were not addressed in a substantial manner or at all, resulting in the complainant having to resign her employment”. They also noted that “I am satisfied that the respondent failed to put appropriate measures in place to stop this harassment and sexual harassment from occurring or to reverse its effects in that particular circumstance”.
The complainant was awarded €20,000 in compensation.
Sexual Harassment Cases and Settlement Agreements
If you settle your employment law case, it goes without saying that the settlement agreement will contain a non-disclosure clause. This is considered to be general practice, and neither side is likely to contest it. If they did, the settlement agreement would just fall through.
However, in recent years, there has been a debate about whether the use of non-disclosure agreements in sexual harassment cases is ethical.
In 2018, Theresa May described such agreements as being “unethical”. She went on to say, “it seems that our laws allow rich and powerful men to pretty much do whatever they want as long as they can pay to keep it quiet”.
The late Richard Grogan expressed similar sentiments about Irish employment law. He stated that “some organisations have been good at buying off claims, then leaving the person in situ because they were a senior executive”. He suggested that Irish law should be changed to allow for a non-disclosure of the settlement payment but not the subject matter in sexual harassment cases. However, as a practice we have also counselled sexual harassment victims who were concerned about the public nature of WRC proceedings. Our Principal Solicitor, Barry Crushell, was quoted in an Irish Governmental Report entitled ‘The Prevalence and Use of Non-Disclosure Agreements in discrimination and sexual harassment disputes’:
“NDAs were identified as a means by which signatories could prevent other employers from knowing that they had made a complaint and thereby avoid being labelled a ‘troublemaker’ and therefore blacklisted within their sector.”
The report was produced by the Research and Evaluation Unit in the Department of Children, Equality, Disability, Integration and Youth (DECDIY), in response to growing public awareness of the potentially unethical use of NDAs, and within the context of a review of Ireland’s Equality Acts. The report correctly identified that complainants were often junior staff or students, while alleged perpetrator are often more senior staff or other figures of authority. The status of an institution is ‘built around the reputation of its most important members’, therefore if a complaint of sexual harassment or discrimination is made against an individual whose reputation is ‘entangled’ with that of the institution, the institution may prioritise the preservation of the accused’s reputation in an effort to shield the organisation as a whole.
Takeaways For Employers and Employees
A study from Sweden has highlighted that often it is the victim, and not the perpetrator, who will suffer the career effects of making a complaint about sexual harassment. The study showed that it is very likely that when a woman reports sexual harassment in the workplace, she will then switch to a new workplace, which has more female colleagues, and where the pay is generally lower.
Employees
Employees should never be afraid to speak up if they have experienced sexual harassment in the workplace. They should take some comfort in the fact that even if their employer doesn’t help them, the WRC have shown that they will come down very hard on employers who do not deal properly with such a complaint.
Employees should note that it is of the upmost importance that they follow the company’s internal grievance procedures. This will benefit you greatly if you go on to bring a case to the WRC.
Employers
Employers should have an open-door policy and take every complaint of sexual harassment seriously. It is vital that such complaints are adequately investigated and there are proper consequences in place for inappropriate behaviour.
