What is The Employer’s Defence in a Discrimination Case?

 

workplace discrimination ireland

If you are an employer faced with a discrimination based claim pursuant to the Employment Equality Acts there is a defence provided for in the legislation itself.

However, before looking at this defence let’s take a look at the position in relation to the burden of proof in relation to claims of discrimination in the workplace.

Section 85A of the Employment Equality act 1988 states:

Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F153 [ Director General of the Workplace Relations Commission ] under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘ discrimination ’ includes —

( a ) indirect discrimination,

( b ) victimisation,

( c ) harassment or sexual harassment,

( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked. ]

This means the burden of proof is on the employee in the first instance to establish facts from which it can be presumed that there has been discrimination in relation to him/her. If he/she can do this then the burden of proof shifts from the employee to the employer to prove that discrimination did not occur.

The employer’s defence is set out in section 14A dealing with harassment and sexual harassment.

14A states:

Harassment and sexual harassment.

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. ]

This section means that harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds and sexual harassment is any form of unwanted conduct of a sexual nature.

The employer’s defence is set out in 14A (2) above for it states:

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.

What does this mean?

The first part of this defence is that the employer took steps to prevent harassment occurring in the first place. This has been held by the Labour Court to mean, at a minimum, the existence of policies/procedures in the workplace to prevent and deal with harassment. The most popular way for employers to ensure the necessary policy is to have a staff handbook or dignity at work policy communicated and available to all staff.

The second part of this defence is, where harassment has occurred, to take action to reverse the effect of the harassment that has occurred. This would involve a look at the actions that the employer took once it was aware of the complaint of harassment and how quickly it took steps to deal with it.

A substantial part of this response would be an investigation of the complaint(s) and the practical steps and any measures taken to deal with the employee’s complaint.

Takeaway for employers

There is two parts to the defence open to you in a discrimination/harassment type claim:

  1. What did you do beforehand to try to ensure no discrimination occurs in the workplace-for example, had you a dignity at work/anti bullying/anti harassment policy and procedure communicated to all employees
  2. ONce an allegation or complaint of harassment is made have you taken all reasonably practical steps to deal with the complaint and to reverse the effect of any harassment which has occurred.