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:
- sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment;
- Sexual harassment can be carried out by the employer, a fellow employee, or a client/customer/business contact of the employer;
- 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;
- 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.