The Employment Equality Acts 1998-2015 protects against harassment/sexual harassment in the workplace. The employer has a duty to provide an environment free of harassment (sexual or otherwise) as part of the conditions of employment. The employer may also be liable if they were aware of harassment, or should have been reasonably aware that it was taking place – and failed to take action. This can lead to the employer and not the perpetrator being held liable.
Employees are also liable for acts of their agents where such acts are done with the authority of the employer. However, it is a good defence for the employer to show that the employer took reasonable steps to prevent employees from doing the particular act complained of or from doing acts of that particular description in the course of their employment
Sexual harassment is not limited to the incorrect behaviour of one employee to another. It also includes- customers, clients and business contacts of the employer. A sexual harassment free environment extends throughout the work place but the action may occur in a car, a street, a hotel, seminars, etc. The amount of control that the employer has in particular circumstances would be a relevant factor.
Sexual Harassment is:
- Any act of physical intimacy
- An express request for sexual favours
- And any other act or conduct including – gesture, display or circulation of written words, pictures or other material which is unwelcome
Employers must ensure that they have taken reasonable practicable steps to prevent the above.
Vicarious liability is where the law holds one person liable for the wrongs committed by another person even though the person held liable is not at fault in the accepted sense of the word. The employer is not liable for all the wrongs committed by his employee, but only for those, which arise out of or are within the scope of his employment. Liability thus arising is called vicarious liability because it arises indirectly.
In line with the Equal Status Acts 2000 and 2004 Employers are now liable for discriminatory acts of an employee in the course of his or her employment, unless they can prove that they took reasonably practicable steps to prevent the conduct. It is therefore extremely important that relevant policies are introduced and that all employees are aware of their obligations under these policies.
The Employment Equality Acts 1998-2015 set out the definitions of harassment and sexual harassment, and provide that in certain circumstances, where harassment or sexual harassment occurs in the workplace, that this may constitute discrimination by the employer in relation to the victim’s terms and conditions of employment.
Harassment is defined 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.
Sexual Harassment is defined 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.
The legislation sets out that the unwanted conduct referred to in both definitions may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
Where an employee, or self employed contractor, is harassed or sexually harassed in the workplace, or otherwise in the course of his or her employment, and that harassment or sexual harassment is perpetrated by either;
- another person employed at that place, or by the same employer; or
- the victim’s employer; or
- a client, customer or other business contact of the victim’s employer, and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent its occurrence,
then that harassment or sexual harassment shall constitute discrimination by the victim’s employer in relation to the victim’s terms and conditions of employment.
Where such harassment has occurred and either the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of accepting or rejecting the harassment, or it could be reasonably anticipated that he or she would be so treated, then that harassment or sexual harassment shall constitute discrimination by the victim’s employer in relation to the victim’s terms and conditions of employment.
Note: Employee, for the purposes of the Acts, also refers to self employed contractors and partners in a partnership.
Bullying is a form of harassment. Like harassment, bullying may have many motivations - race, colour, gender, religion, sexual orientation, disability. In order to be protected by the Employment Equality Acts 1998-2015, the bullying must be based on one of the grounds protected under the Acts. Bullying is best understood as a direct and systematic attempt either by means of physical or psychological behaviour to undermine an employee’s sense of value of his/her employment.
Bullying in the workplace is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual‘s right to dignity at work.
An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a once off incident is not considered to be bullying.
(Task Force Report, Government Publications, April 2001)
The Health and Safety Authority is the central coordinating state agency handling bullying at work. Bullying is considered a workplace hazard alongside more traditional hazards and as such, must be treated within the Safety Management System. Bullying must be identified as a hazard and a risk assessment carried out to eliminate or reduce the risk of its consequences should it occur.
All employers have a responsibility, as far as is reasonably practical, to provide a workplace where accident, disease and impairment of physical and mental health are prevented. The Safety, Health and Welfare at Work Acts 2005 states that the employer's duty includes in particular the provision of systems of work that are planned, organised, performed and maintained so as to be, as far as is reasonably practicable, safe and without risk to health.
Where a bullying culture has been identified, employers must take reasonable measures to prevent incidents of bullying occurring and also when and if they do occur, prevent the risk of injury to the health of employees worsening by providing and implementing transparent and just anti-bullying policies and procedures.
Employees have a responsibility to ensure that they are not contributing to a bullying culture and it is the duty of every employee to take reasonable care for his own safety, health and welfare and that of any other person who may be affected by his acts or omissions while at work.
Managers and supervisors have a particular responsibility to promote dignity in the workplace for all. They should be alert to the possibility of bullying behaviour and be familiar with the policies and procedures for dealing with allegations of bullying, as bullying has been identified as a workplace hazard.
- Any aggressive behaviour by a Manager, Colleague, Employee.
- Any repeated verbal harassment.
- Any physical harassment.
- Any personal insults and name calling.
- Persistent criticism.
- Persistent “picking” on a person for the butt of a joke, horseplay, uncomplimentary remarks or other behaviour likely to cause offence.
- The maligning or ridiculing of a person directly to others by rumour, gossip, ridicule and / or innuendo.
- Unfair delegation of duties and responsibilities.
- Intimidation and threats in general.
- Social exclusion or isolation.
- Manipulating the nature of the work or the ability of the victim to perform the work, for example by withholding information or setting meaningless tasks.
- Any unwelcome verbal advance.
- Any unwanted pressure for social contact.
- Sexually derogatory statements.
- The display of sexually suggestive or degrading objects, pictures or calendars in the workplace.
- Sexually discriminatory remarks, or innuendo, or jokes made by someone that is offensive or objectionable to the recipient, or which causes the recipient discomfort, humiliation, or which interferes with their job performance.
- Any unwelcome physical advance, which includes:
- Unnecessary touching, groping, pinching, patting, fondling, or kissing.
- Sexually aggressive or derogatory remarks.
- Leering at a person’s body.
- Compromising invitations.
- Unwelcome sexual advances.
- Demands for sexual favours.
- Sexual assault or rape (where civil/criminal proceedings may also be appropriate).
It is the unwanted and unwelcome nature of sexual harassment, which distinguishes it from behaviour which is welcome and reciprocal. A single incident of sufficiently outrageous behaviour will suffice – it does not necessarily have to be repeated. It should also be noted that it is the impact of the conduct on the recipient and not the intent of the perpetrator that determines whether the behaviour is acceptable.
Bullying, intimidation, harassment and sexual harassment may occur outside the workplace e.g. at a Company Meeting, or Christmas Party, whilst attending a conference on behalf of the Company. The employer may have a vicarious liability or responsibility for such actions if they occur and the degree of control available to the Employer in the particular circumstances would be a relevant factor.
On receipt of a formal complaint a full investigation should be conducted and it may be necessary to initiate disciplinary action against a perpetrator. Disciplinary action may involve dismissal, suspension, or relocation of the bully / harasser together with an apology from the harasser for his/her conduct to the complainant – if the complainant so wishes. The complainant will not be relocated except at this/her own request. Records should be held as per the Company Disciplinary procedure.
Details of any action taken should be entered on the harasser’s Personnel File and appropriate records of the complaint and the resolution of the same will be maintained.
Disciplinary action should also be taken against any person found to be victimising or otherwise bullying or harassing a complainant or a witness to harassment, with appropriate records placed on the that person’s Personnel File. For further information see Sample policy on page 11 in this section)
Organisations should commit themselves to working together to maintain a workplace environment that encourages and supports dignity at work. Harassment or/and Bullying in any form should not be accepted or tolerated. In order to do this, the employer should make it clear, in policy statements and in the operation of these policies, in written form and in appropriate and timely action taken, that he or she is intolerant of workplace bullying and intolerant to behaviour which infringes an individual’s right to dignity at work.
- One of the first steps in the prevention of workplace harassment/bullying is the drawing up of a written policy. The policy should be drawn up in consultation with staff representatives, unions or others, as appropriate. It should state the management and staff commitment to dignity in the workplace. It should clearly outline what harassment/bullying is and the step by step procedure for making an informal or formal complaint.
- The policy should be publicised, made visible and all individuals whether permanent or temporary should receive a copy. Organisations should raise awareness of the issue by inclusion in staff bulletins, training, at recruitment stage and using any other appropriate method.
- Allegations of harassment/bullying should be investigated, fairly and thoroughly without reprisals for the complainant. Complaints should be dealt with in a confidential manner and as speedily as possible. Natural justice applies and accused persons are presumed innocent until, and if, proven guilty.
The objective of this process is to create and maintain a positive work environment where the right of each individual to dignity at work is recognised and protected. Further details are included in sample harassment & bullying policies on page 137 in this section.
If bullying, harassment or sexual harassment is perpetrated by a person other than the employer, it shall be the defence for the employer to prove that the employer took such steps as are reasonably practicable to:
- Prevent the person from harassing or sexually harassing the victim, or any class of persons including the victim; and/or
- Prevent the victim from being treated differently in the workplace or otherwise in the course of employment, and to reverse the effects of any such treatment where it has occurred.
A person’s rejection of or submission to bullying, harassment or sexual harassment may not be used as a basis for any decision affecting that person.