Sexual Harassment in the Workplace in Ireland-a Quick and Easy Guide

sexual harassment

Have you experienced sexual harassment in the workplace?

Maybe this is a problem you have to deal with on a regular basis?

What can you do about it?

Let’s have a look.

Definition of Sexual Harassment

Firstly, let’s be clear what sexual harassment is. Sexual harassment is defined in section 8 Equality Act, 2004 as

14A.—(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) 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 it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘employee’ includes an individual who is—

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.

 

There is a number of points you need to take from this definition:

  1. sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment;
  2. Sexual harassment can be carried out by the employer, a fellow employee, or a client/customer/business contact of the employer;
  3. It is a defence for the employer to show that he took steps that are reasonably practicable to prevent the harassment or reverse its effects;
  4. Sexual harassment is any form of of unwanted verbal, non-verbal or physical conduct of a sexual nature, 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.

So, now that you are clear on what sexual harassment is and how it can occur, let’s take a look at some other vital legislation: the Employment Equality Act, 1998 (revised and updated to March, 2016).

Vicarious Liability of Employers

Section 15 Employment Equality Act, 1998 provides that the employer is vicariously liable for the actions of his employees, whether he was aware or not:

Liability of employers and principals.

15.— (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

( a) from doing that act, or

( b) from doing in the course of his or her employment acts of that description.

Burden of Proof

Section 85 A Employment Equality Act, 1998 sets out the burden of proof in employment discrimination cases:

85A. — (1) 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 in relation to him or her, it is for the respondent to prove the contrary.

 

You will see that once the victim can establish facts from which discrimination can be presumed the burden of proof shifts to the respondent/employer/harasser.

Redress

If you want to seek redress for sexual harassment you can submit a claim to the Workplace Relations Commission or the Circuit Court. The maximum award from the WRC is 2 years’ remuneration and the maximum from the Circuit Court is the maximum of its jurisdiction, which in 2018 is €75,000.

If the employee has suffered a psychological or psychiatric injury as a result of the harassment he/she may bring a personal injury claim against the employer, and as part of this negligence claim he/she would be also pleading breach of contract, breach of statutory duty, failure to provide a safe place of work in breach of health and safety obligations, etc.

The claim must be brought to the WRC within 6 months of sexual harassment incident, and, if the harassment has been continuous over a period of time, within 6 months of the last incident. This 6 months time limit can be extended to 12 months if reasonable cause for the delay can be shown.

The claim for a personal injury can be brought to the Injuries Board and then through the Civil Courts within 2 years of the injury.

Instructive sexual discrimination/harassment case, July 2018

In July, 2018 an extremely useful sexual discrimination/harassment case decision was handed down by the WRC. It involved a lesbian employee who was asked, amongst other things, why she did not want men and why she was not a normal person.

It is quite an extensive decision and you can see the various issues the WRC adjudicator will look at in arriving at a decision in this type of case.

The adjudicator also refers to other decided cases and legal text books concerning this topic.

You can read the full decision here in the case,  ADJ-00010217, involving a general store assistant and a large company.

The Zen of Withdrawing a Job Offer

withdrawing job offer

It was to be Mary’s first job, she had recently graduated, and she was devastated. The job offer was pulled.

Wojciech left a good job that he took up 7 years ago when he came to Ireland from Poland. Now he was told the job was “no longer available” and he felt embarrassed about going back to the employer he had just left. But he had a mortgage and young family to take care of, and he was distraught and anxious.

These scenarios are not all that rare.

From time to time I have received queries from employees who have had the misfortune to have had an offer of employment withdrawn. The circumstances can vary widely from a situation where an unemployed person, like Mary, is offered a job to the individual, like Wojciech, who has succumbed to promises and blandishments and left a good, secure job to take up employment somewhere else, only to have the offer withdrawn.

There is also a wide variety in relation to the timing of the job offer withdrawal. It could happen prior to acceptance of the offer by the employee to the time just prior to the commencement of employment.

Timing of withdrawal

Firstly, if the employer withdraws the offer of employment before the employee accepts the offer there is no problem for the employer, and no recourse for the employee as there is no binding contract.This assumes, however, that the withdrawal was not by virtue of a discriminatory ground (there are 9 grounds of discrimination). Learn about discrimination in the workplace here.

A discrimination based claim arising from an interview or offer of employment is possible even in circumstances where the employee is unsuccessful at interview or has been successful but the job has subsequently been withdrawn. Normally, you have to be an employee to bring an employment related claim, but not in this situation of alleged discrimination.

Secondly, the employee has accepted the offer of employment but has not yet commenced employment. Once an offer has been made and accepted the long established principles of contract law apply. That is, is there has been and offer and acceptance of tha offer and the parties intended to enter into legal relations then a binding contract is in place.

However, that contract can be terminated in accordance with the terms of the contract. This would involve giving the employee the contractual notice period of the termination.

If the contract had a probation clause, and it contains a short notice period-for example one week-the potential exposure of the employer in a breach of contract suit would be only for one week’s salary and whatever benefits the employee would have been entitled to.

This gets more expensive for the employer if the notice period was, say 3 months, for the loss to the employee of withdrawal of the offer of employment would be 3 months salary plus benefits, if any.

Another factor to be considered is any other losses or costs that the employee has incurred as a result of the job offer withdrawal. The employee could, for example, have incurred costs in moving home or making other arrangements in reliance on the new job coming through. All of these costs and claims will have to be carefully considered by the employer in settling any claim by a disgruntled, disappointed employee, as they will doubtless be claimed in any breach of contract legal proceedings.

Written offer versus oral

The terms and conditions of the employment contract will be more difficult to prove if the offer of employment was only made orally. There is no problem, however, with a perfectly valid contract being established, even in the absence of writing, on the basis of oral/verbal representations.

However, proving the various terms and conditions, such as the notice period or whether there was a probation period will be far more problematic in the absence of any written note or memorandum.

Regardless of when the offer is pulled the employer would be well advised to keep good, clear records setting out why the offer has been withdrawn and which can be called upon to refute any claim of discriminatory treatment.

How can the employer protect herself? The use of pre-conditions is one effective way.

Pre-conditions

To avoid the problem of having to withdraw an offer of employment the employer should consider the use of preconditions-that is, making the offer of employment subject to certain requirements. These could include:

  • The employee having the qualifications claimed
  • Taking up of satisfactory references
  • The employee can legally work in the jurisdiction
  • The employee has any necessary licences or memberships or accreditations, if appropriate
  • No issues arising from a restrictive covenant in a previous contract of employment

Ensure that you refer to whatever preconditions you want to impose in all correspondence to the potential employee, and that the letter of offer states clearly that the offer is subject to and conditional upon the satisfactory fulfilling of the pre-conditions.

How Far Must the Employer Go With Appropriate Measures to Avoid Disability Discrimination? Court of Appeal Decides in Nano Nagle Case

disability discrimination

The Court of Appeal issued an interesting and important decision last week in relation to how far an employer must go to make reasonable accommodation and take appropriate measures to facilitate an employee with a disability.

A special needs assistant in a school, Nano Nagle School, since 1998 suffered horrific injuries in a road traffic accident in 2010. She was anxious to return to her old role in the school in 2011 but the employer was concerned about her ability to discharge her duties.

Occupational therapist report

An occupational therapist report was commissioned and this found that Ms Daly was capable of undertaking 9 out of 16 tasks required of an SNA. On foot of this report, and concluding that she would not be able to fulfill her role as an SNA now or in the future, the school refused to allow her to resume her position.

Equality tribunal

Ms Daly brought a claim to the Equality Tribunal on the basis that the school had failed to make reasonable accommodation, and take ‘appropriate measures’, for her return to work. This is a legal requirement pursuant to the Employment Equality acts, 1998 to 2015; in particular, section 16 (3) and (4) states that

F33 [ (3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person’s employer.

( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance. ]

(4) In subsection (3)—

F34 [ ‘ appropriate measures ’ , in relation to a person with a disability —

( a ) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; ]

Ms Daly lost her case at the Equality Tribunal and appealed to the Labour Court, and the Labour Court found in her favour as it held that the employer had failed to make reasonable accommodation for her return to work.

High Court

The employer then appealed this decision to the High Court and the High Court, too, found in favour of Ms Daly. It found that the ‘appropriate measures’ referred to in section 16 (4) above did not require Ms Daly to be able to discharge all the duties associated with her role as an SNA as it obliged the employer to make changes to patterns of work and working time to accommodate her.

The employer then appealed this decision to the Court of Appeal who issued its decision last week (on 31st January, 2018).

Court of Appeal

The Court of Appeal found that the Labour Court and High Court did not place enough weight on the health and safety concerns arising from Ms daly’s inability to provide hands on intervention in the class. It also found that the Labour Court had failed to have sufficient regard for the efforts of the school to engage Ms Daly as a ‘floating SNA’ when the school had attempted to obtain funding for such role, but was refused by the relevant funding body.

The Court of Appeal also held:

The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting. It is not a matter of review of process but of practical compliance. If reasonable adjustments cannot be made, as objectively evaluated the fact that the process of decision is flawed does not avail the employee.

The Court of Appeal also considered the significance of Ms Daly being able to do some, but not all, tasks required of a SNA. It stated:

“Adjustment to access and workplace hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16(1) must be respected.”

You will note that the Court of Appeal found that reasonable accommodation and ‘appropriate measures’, as required by the Employment Equality Acts, does not require the creation of a new position. Rather, the Court of Appeal found that

The section requires full competence as to tasks that are the essence of the position

Takeaway for employers

The employer needs, as always, to act reasonably and obtain appropriate professional reports. He also needs to see whether he can distribute non essential tasks as part of his taking ‘appropriate measures’ to accommodate the employee.

However, it is reasonable for him to expect the employee to be competent as to the tasks which are the essence of the position, and if this is not the case then he may be justified in terminating the employment on the grounds of incapacity.

Supreme Court Appeal

At the time of writing (29th September, 2018) this case is under appeal to the Supreme Court.

A Tale of Discrimination (Vera’s Story)

discrimination story

Vera loved rabbits.

She used to remind me of Lennie in Steinbeck’s short novel, “Of Mice and Men”, although, unlike Lennie, she was sharp as a tack.

Vera started working in retail when she was 15, straight out of school.

She worked her way up in the retail industry-mainly small shops- and found herself as manager of a shop on the northside of Dublin after 35 mostly good years.

She got on great with her employer, Jimmy, who owned the shop, and he, like Vera, was “old school”.

He was a kind man and was happy to generously give Vera time off for family events or hospital appointments, which Vera never took advantage of.

When Jimmy came to tell her that he had sold the shop she was a little bit anxious, because she didn’t know what to expect from the new owner, or how things might change.

Her worst fears were soon realised when she met her.

Geraldine was a go-goeting, ambitious young woman of 25 who had been given a leg up in her aspiring entrepreneurial career by her father. He guaranteed the loan to buy the shop, and gave her the deposit,too.

Soon after taking over the shop Geraldine dropped a few remarks to Vera which Vera thought were inappropriate.

Little remarks like, “we will have to get our costs down, Vera, especially the wages bill”, and “how long do you think you will continue working?”, and “can we manage with less full timers?”

All the little digs worried Vera.

A few months after the change of ownership Vera’s GP recommended that she have some minor surgery carried out as the best way to deal with an ongoing medical issue she had.

Vera eventually bit the bullet and went in for the surgery.

The surgery was successful and her GP was happy with the outcome. However, he recommended Vera take it easy for 3 or 4 weeks when she went back to work-no heavy lifting, no pulling or dragging heavy stock, and to avoid stretching too vigorously.

Vera was fed up at home and was one of those people who had to be at something; she just couldn’t sit still for any longer than an hour.

So she was looking forward to going back to work.

She went to Geraldine to let her know when she would be back and what her GP had recommended by way of an easing back into the more vigorous parts of her job.

Vera was amazed with Geraldine’s reaction.

“Vera, I am not happy to let you back to work until you are fully fit to do your job in its entirety. Why don’t you wait a few more weeks until you are fully recovered?”, she said.

“But I want to go back to work now”, said Vera, “and the doctor said it would be good for me, provided I avoid some tasks for a few weeks”.

The conversation ended on a sour note, and Vera was stunned.

The next day she received an email from Geraldine saying that she could not let her return to work until she was fully fit. In her email she mentioned “health and safety” and “insurance” and “duty of care to employees”.

Vera was not going to take this lying down, she had given 35+ years of service in a job she loved and was not going to be “put out to grass like this”, as she saw it.

Vera came to see me and we had a good chat. Even though she was a small lady, bird like, she had a real steel about her. She told me she was brought up in Cabra, one of a family of 11, and she told me you soon had to learn how to stand up for yourself.

She said when she was 11 or 12 she used to go down to Croke Park on big match days and sell stuff to the crowd going to the GAA matches: apples, oranges, paper hats (the ones which, if it rained, all the colours ran out of), flags, you name it.

I told her about a case I had read about, where a man-I think he worked in a quarry in Galway- who wanted to return to work after brain surgery was dismissed and brought a claim for discrimination on the grounds of disability.

The man could only work for 20 hours per week on his return, on his doctor’s recommendation, but the employer wanted him to return to the full 39 hours.

They could not reach agreement so the employer dismissed him. The employee brought a claim under equality legislation and claimed that he was discriminated against on the grounds of disability, and the employer has failed, contrary to his legal obligation, to make “reasonable accommodation” for his return to work.

The worker was awarded €40,000 by the Equality Tribunal. (You can read more about that case here.)

It struck Vera and me that her situation appeared to be very similar to this man’s. No two cases are the same, of course, but there are certain guiding principles you can draw from cases with similar facts.

So, Vera decided to bring a claim against the employer and her claim was that she was being discriminated against by her employer on the grounds of disability, and the employer has failed, contrary to the Employment Equality Acts to make reasonable accommodation for her return to work.

Vera felt she was being effectively dismissed by the employer’s refusal to let her take it easy for a few weeks in relation to a handful of tasks.

Vera was so angry about the way she was treated that she resigned. Not long afterwards, Vera had a new position in retail, but she was not going to let this lie.

We submitted her claim to the WRC, and felt Vera had a really strong case. Close to the day of the hearing the case settled and Vera accepted a nice settlement in relation to her claim.

She felt vindicated. She was working away in her new job, but felt she had to take a stand in relation to the way she was treated, and the lack of respect shown to her by Geraldine.

Takeaway

There are 9 grounds of discrimination in Irish employment law, and disability is one of them. However, the definition of a “disability” is so broad, that even a runny nose has been held to be one.

A disability can be temporary or permanent, and can include an addiction to alcohol or drugs.

The monetary penalties for discrimination are high: up to 2 years’ remuneration for the employee from the WRC and the Circuit Court can award up to its jurisdictional limit.

And Vera?

She is working away, managing another shop, and happy to be back in full swing having made a full recovery from her surgery and the way she was treated.

Discrimination and Equality Based Claims in the Workplace Relations Commission (WRC)

equality in workplac

There are 9 grounds of discrimination recognised in Irish law:

  • Gender
  • Civil status
  • Family status
  • Sexual orientation
  • Religion
  • Age
  • Disability
  • Race (includes race, colour, nationality or ethnic or national origins)
  • Membership of the travelling community.

If your claim to the WRC cannot be based on one of these grounds you may have been treated unfairly or harshly or rudely or appallingly badly, but you have not been discriminated against.

If you have a discrimination based claim it may be one of the following:

  1. You have been discriminated against by an employer, potential employer, employment agency, or other body
  2. You have not received equal pay because of one or more of the 9 grounds (if your equal pay complaint cannot be based on a discriminatory ground you have no claim for discrimination as there is nothing unlawful about paying a different rate of pay for the same work)
  3. The Pensions Act, 1980 prohibits discrimination in respect of occupational pensions-you may not have been allowed to join an occupational pension of have been treated less favourably
  4. An employment agreement contains a provision which is discriminatory, contrary to sections 8 and 9 of the Employment Equality Act, 1998
  5. The Equal Status Acts 2000-2008 allows a discriminatory claim to be brought against a person or company who supplies goods or services or facilities.

Claims from 1 to 4 above are commenced by filling out a form, EE2, which you send to the person who you claim has discriminated against you. They reply on form EE3. If they don’t reply inferences can be drawn from this.

Once you have received their response you can then decide whether to bring a claim to the Workplace Relations Commission (WRC) under the Employment Equality acts.

Claims Under Equal Status Acts

Not a lot of people know this..

Most people think the WRC (Workplace Relations Commission) only deals with employment and/or industrial relations issues.

That’s not the case, at all.

The Workplace Relations Commission also deals with complaints about discrimination in the provision of goods and services, accommodation, and access to education under the Equal Status Acts 2000-2015.

Discrimination in the context of employment has 9 grounds of discrimination. But under equality legislation there is now 10 grounds of discrimination, thanks to the Equality (Miscellaneous Provisions) Act 2015, which created a 10th ground in respect of housing assistance.

The main thrust of the Equal Status acts is to prevent discrimination in relation to the provision of all services, including entertainment, banking, transport, travel, insurance, and more.

The 10 grounds of discrimination covered by the Equal Status acts are

  • Gender
  • Civil status
  • Race/colour/nationality
  • Family status
  • Sexual orientation
  • Age
  • Membership of the travelling community
  • Disability
  • Housing assistance in relation to the provision of residential accommodation

How to Make a Complaint to the WRC

The first thing you must do is to complete and send a form-ES1-which is a notification in writing to the person/company who you are complaining about. This form must specify the act of alleged discrimination and must be received by the other party within 2 months’ of the incident.

The other party does not have to respond, but if he chooses to do so may use form ES2.

If the other party ignores you and does not respond within 1 month, or you are not happy with the reply, you can then refer the complaint to the WRC for adjudication. This referral must be made within 6 months of the alleged discrimination.

In due course an adjudication hearing will be heard and both parties can put their side of the story forward and the adjudicator will make a decision.

Equal Status Acts in Ireland

The relevant legislation is:

  • The Equal Status Act, 2000
  • The Equality Act, 2004
  • The Equal Status (Amendment) Act, 2012
  • The Equality (Miscellaneous Provisions) Act, 2015.

The Law Reform Commission has published a consolidated version of the Equal Status Acts which you can access here.