Employment Update: #MeToo – What Employers Need To Know About Sexual Harassment
07 November 2017
Unprecedented media attention has been given to the issue of sexual harassment in the workplace following accusations levelled against a number of high profile individuals. The global response to the #MeToo campaign has shown that sexual harassment is a real issue faced by women and men throughout the world across all areas of employment and industry.
The Employment Equality Acts 1998-2015 (Acts) prohibit harassment on nine distinct discriminatory grounds. These include the prohibition of sexual harassment of employees, including agency workers and trainees, in the workplace or during the course of their employment. This includes harassment and sexual harassment by fellow employees, the employer and clients, customers or other business contacts of the employer, including anyone the employer could reasonably expect employees to come into contact with. This is important because employers may be found liable for the sexual harassment of an employee even where the alleged sexual harassment occurs outside of the workplace and where the alleged sexual harasser is not an employee.
What constitutes sexual harassment?
The Acts define harassment as unwanted conduct which is related to any of the nine discriminatory grounds. Sexual harassment is defined as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. The conduct must have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Unwanted conduct may consist of:
- spoken words or gestures
- the production, display or circulation of written words, pictures or other material
The definition captures both intentional sexual harassment and behaviour which may be perceived by a person as constituting sexual harassment. This distinction is important because employees may have very different responses to identical behaviour. Remember that one person’s workplace banter may be another person’s sexual harassment.
Effects of sexual harassment or assault
The effects of sexual harassment can go wider than its victims. Sexual harassment can adversely affect colleagues who witness the harassment. In addition, sexual harassment may affect the productivity of an employer. Employees may take sick leave or resign as a result of having experienced or witnessed sexual harassment. Employee morale is likely to suffer in a workplace environment in which sexual harassment is allowed to take place.
Addressing the problem
The Department of Justice, Equality and Law Reform produced an updated Code of Practice on Sexual Harassment and Harassment in 2012. The code promotes the development and implementation of policies and procedures in order to ensure that workplaces are free from sexual and non-sexual harassment and that the dignity of everyone is respected. The code provides that employers should adopt, implement and monitor a comprehensive, effective and accessible policy on sexual and non-sexual harassment. It recommends that the policy should be devised in consultation with employees and trade unions, or employee representatives, and should clearly outline:
- what constitutes sexual harassment
- what constitutes non-sexual harassment
- the persons responsible for implementing the policy
- how complaints will be handled
An employer is legally responsible for the sexual harassment suffered by employees in the course of their work. In order to avoid liability in any sexual harassment related legal proceedings brought against them, employers must demonstrate they have taken reasonably practicable steps to:
- prevent sexual harassment and harassment from occurring
- reverse its effects
- prevent its recurrence.
In order to rely on this defence, it will not be sufficient to show that an employer has a policy in place. The employer must be able to show that the policy is readily accessible to employees and that the policy is strictly adhered to within the organisation.
It is likely that the current attention on sexual harassment will lead to an increase in claims of sexual harassment against employers in the short term. Employers should take advantage of the current attention on sexual harassment and use it as an opportunity to have discussions on harassment and sexual harassment in the workplace and what is acceptable and unacceptable behaviour. It is also a good opportunity for employers to review and update their policies in consultation with employees and their representatives.
For more information on dealing with claims of sexual harassment or assault in the workplace, contact a member of our Employment & Benefits team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.