What is ‘harassment’ under Irish Employment Law?
The Labour Court in the case of Nail Zone Ltd v A Worker, Labour Court Determination EDA 1023, 10 November 2010, defined the law in relation to harassment as follows:
“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.”
It is also worth citing the Department of Equality and Law Reform’s Code of Practice on Measures to Protect the Dignity of women and men at work (1994) on the point that the focus in this definition is upon how the conduct was regarded by the recipient rather than upon the motive or intention of the perpetrator.
Sexual Harassment and Irish Employment Equality Law
Section 14A of the Employment Equality Act, 1998, broadly defines sexual harassment as:
“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, 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.”
It is also worth noting the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012, which provides a non-exhaustive list of examples:
Physical conduct of a sexual nature
This may include unwanted physical contact such as unnecessarily touching, patting or pinching or brushing against another employee’s body, assault or coercive sexual intercourse.
Verbal conduct of a sexual nature
This includes unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the work place after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments.
Non-verbal conduct of a sexual nature
This may include the display of pornographic or sexually suggestive pictures, objects, written materials, e-mails, text-messages or faxes. It may also include leering, whistling or making sexual gestures.
Code of Practice on Sexual Harassment and Harassment at Work
The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 S.I. No. 208 of 2012 sets out a Code of Practice on Sexual Harassment and Harassment at Work (Code of Practice). This Code of Practice is issued as a guideline for employers and employees. The provisions of the code are admissible in evidence in proceedings before an Adjudication Hearing of the Workplace Relations Commission.
The Code, amongst other things, sets out the scope of sexual harassment provisions: “The scope of the sexual harassment and harassment provisions extend beyond the workplace, for example to conferences and training that occur outside the workplace. It may extend to work-related social events.”
Harassment outside of the Workplace
Does harassment outside of work, by an employer or colleague, have any relevance?
It is worth examining the case of A Limited Company v One Female Employee (EE10/1998), where the Equality Officer concluded that “within the scope of employment” can include events outside of the workplace. In that case, the claimant was allegedly harassed by two colleagues during a residential company training programme in a hotel.
Burden of Proof in Sexual Harassment Cases
Ordinarily, the onus is on the employer to prove that no sexual harassment occurred.
There is significant case law in support of this position, the starting point would be the decision of the Labour Court in Southern Health Board v Mitchell (AEE/99/E) a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”
Notwithstanding legal precedent, all cases rests on their own particular facts and evidence.
Defence to Claim of Sexual Harassment
Section 14A (2) of the Employment Equality Act, 1998 provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment occurring in the workplace and in circumstances where such harassment has occurred it took action to reverse its effect.
Employers are legally responsible for the sexual harassment and harassment of employees carried out by co-employees, clients, customers or other business contacts of the employer. It is a defence for the employer to prove that he/she took reasonably practicable steps to prevent:
— the employee from being harassed
— the employee from being treated differently in the workplace or in the course of employment and, if and so far as any such treatment has occurred, to reverse the effects of it.
In order to rely on this defence employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also accessible effective complaints procedures. The measures taken to put the policies and procedures into practice will also be taken into account by courts and tribunals: employers will not be able to rely on an excellent policy if it has not been effectively implemented.
The Labour Court has consistently held that in order for an employer to avail of the first component of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the sexual harassment occurred and that the policy was effectively communicated to staff.
