Sexual Harassment and Harassment at Work
Code of Practice on Sexual Harassment and Harassment at Work
A new code of practice on sexual harassment and harassment at work was approved by the Minister for Justice and Equality this summer. This provides guidance to employers on how to deal with the issue in their workplace and what to include in their policy. Bright Contracts have updated the default policy in the handbook to reflect these changes. The full code of practice is available at www.brightcontracts.ie/docs/codes-of-practice/ but I will take this opportunity to outline some important aspects and key changes.
Overview
The code states that an employer is legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless he/she took reasonably practicable steps to prevent sexual harassment and harassment from occurring, to reverse the effects of it and to prevent its recurrence. Employers who take the steps set out in the code to prevent sexual harassment or harassment, to reverse the effects of it and to prevent its recurrence, may avoid liability for such acts in any legal proceeding brought against them.
Although the code does not impose any legal obligations in itself, it’s provisions are admissible in evidence and may be taken into account in any criminal or other proceedings before a court and also proceedings before a Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Equality Tribunal and a Rights Commissioner.
Employers are encouraged to follow the recommendations in a way that is appropriate to the size and structure of their organisation.
Discriminatory Grounds
As with the previous code, there are nine discriminatory grounds, but ‘marital status’ has been changed to ‘civil status.’ The nine grounds are:
• Gender
• Civil status
• Family status
• Sexual orientation
• Religious belief or lack of religious belief
• Age
• Disability, lack of disability or the nature of disability
• Race, colour, nationality or ethnic or national origins
• Membership or non-membership of the Traveller community
Definitions
The definitions of harassment and sexual harassment have been updated.
“Harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds 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 in section 14A(7) of the Employment Equality Act as any form 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.”
Non-Employees
The Employment Equality Act protects employees from sexual harassment and harassment by:
• the employee
• fellow employees
• clients
• customers
• other business contacts including any person with whom the employer might reasonably expect the employee to come into contact in the workplace. This may include those who supply or deliver goods/service to the employer, maintenance and other type of professional contractors as well as volunteers.
It is important for employers to consider the application of the code to non-employees. Employers are legally responsible for the sexual harassment and harassment of employees carried out by clients, customers or other business contacts of the employer.
A policy should point out that sexual harassment and harassment by non-employees such as clients, customers and business contacts will not be tolerated and may lead, for example to termination of contract, suspension of services, exclusion from a premises or the imposition of other sanctions.
The scope of the provisions also extend beyond the workplace, for example to conference and training that occur outside the workplace. It may also extend to work-related social events.
Communication
To effectively communicate the policy to employees, the code states that it should be part of the formal induction process and employers should consider an employee handbook to be distributed to all employees as part of the induction process. The handbook would need to be updated regularly to reflect relevant changes.
It states that the policy should include commitments to training staff on issues of sexual harassment and harassment.
The code recognises that the communication of the policy to non-employees is more difficult and has included some measures that the employer could consider.
The code also refers to ensuring the accessibility to policies and procedures, for example the translation of policies and procedures into languages other than English as appropriate or the provision of interpreters.
Defence
It is a defence for an 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 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 effective complaints procedures. The measures taken to put the policies and procedure 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.
