Code of Practice on Sexual Harassment and Harassment at Work

01 July 2012

Updated July 2012

Summarises the code of practice on sexual harassment and harassment at work revised by the Irish government on 31 May 2012. It introduces the code, defines harassment, explains employers' obligations, sets out an employee's right to information and remedies for contravention, and gives advise on preparing an harassment policy.

The Equality Authority has prepared a new code of practice on harassment at work, the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI No 208 of 2012). This code replaced The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 from 31 May 2012.

The aim of the code is to give practical guidance to employers and employees on:

  • What is meant by sexual harassment and harassment in the workplace.
  • What steps to take to deal with harassment and how to prevent its reoccurrence.

Small and medium sized enterprises may adapt some of the practical steps set out in the code to their specific needs. Any adaptations, however, should be fully consistent with the code’s general intention.

The code deals with sexual harassment on the gender ground and harassment on the eight other discriminatory grounds, namely civil status, family status, sexual orientation, disability, age, race, religious belief, membership of the Traveller Community.

It applies to all employments, employment agencies, trade unions, employer bodies and professional bodies that are covered by the Employment Equality Act.

The Employment Equality Act protects employees from harassment by:

  • their employer
  • fellow employees
  • clients
  • customers
  • other business contacts such as suppliers of goods and services, maintenance contractors and volunteers

The scope of the harassment provisions may extend beyond the workplace, for example, to conferences and training that occur outside the workplace. It may also extend to work related social events. The provisions on harassment apply to employment agencies and vocational training.

The code is admissible in evidence and will be taken into account in determining any relevant question arising in any criminal or other proceedings. That said, the code does not impose any legal obligations nor is it an authoritative statement of the law.

Harassment is defined 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.

The code gives a non-exhaustive list of examples of what constitutes harassment:

  • jokes, comments, ridicule or songs
  • faxes, text messages, emails or notices
  • jostling, shoving or any form of assault
  • gestures, posturing or threatening poses
  • posters, emblems or badges
  • excessive monitoring of work
  • isolation or exclusion from social activities
  • unreasonably changing a person’s job content or targets
  • pressure to behave in a manner that the employee thinks is inappropriate, for example, being required to dress in a manner unsuited to a person’s ethnic or religious background

To constitute harassment the behaviour complained of must firstly be unwelcome. It is up to each employee to decide, irrespective of the attitudes of others to the matter:

  • what behaviour is unwelcome
  • from whom, if anybody, such behaviour is welcome or unwelcome

The fact that an individual has previously agreed to the behaviour does not stop them from deciding that it has become unwelcome. It is the unwanted nature of the conduct which distinguishes harassment from behaviour which is welcome and mutual.

In addition, the behaviour must have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The intention of the perpetrator is irrelevant. The effect of the behaviour on the employee is what is relevant.

An employer is legally responsible for harassment suffered by employees in the course of their work unless they took reasonably practicable steps to:

  • prevent harassment from occurring
  • reverse the effects of it
  • prevent its reoccurrence

The code goes on to state that employers who take the steps set out in Parts 4 and 5 of the code may avoid liability for any such acts in any legal proceedings brought against them. It is essential that employers have in place effective policies and procedures to deal with harassment. These measures should be agreed by the employers with the relevant trade union or employee representatives and, insofar as practicable, clients, customers and business contacts should also be consulted.

Defence

It is a defence for the employer to prove that they 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, insofar as any such treatment has occurred, to reverse the effects of it

In order to rely on this defence, employers must show they have a comprehensive policy that focuses on prevention, remedial action and complaints procedures.

Employers will need to:

  • Review existing harassment and complaint procedures to ensure they comply with Parts 4 and 5 of the new code.
  • Put in place a communication/consultation strategy to alert customers, suppliers, contractors and employees that the policy is in place, or has been revised, and of the consequences of non compliance.
  • Consider insertion of a harassment clause in contracts with contractors, suppliers and other non employees covered by the code.

Right to information

Prior to making a complaint under the Employment Equality Act, an employee is entitled to seek material information from an employer about alleged acts of harassment. There is no obligation on the employer to provide the information but the court or tribunal in subsequent proceedings may draw such inferences as may be appropriate from the failure of the employer to supply the information.

Remedies

A complaint of harassment including complaints relating to dismissal may be made to the Director of the Equality Tribunal who may refer the complaint to an Equality Officer or, with the parties’ agreement, for mediation. In sexual harassment cases, the employee may go straight to the Circuit Court where the monetary jurisdiction is unlimited.

The maximum amount that can be awarded by the Equality Tribunal is the equivalent of 2 years pay or €40,000, whichever is the greater. The Equality Tribunal, Labour Court on appeal or the Circuit Court may order re-instatement or re-engagement. Dismissing an employee for making a complaint of harassment in good faith under the Employment Equality Act is an offence.

What it should say

The code talks about agreeing a policy in consultation with all interested and affected parties and acknowledging this in the policy. It stipulates that the policy should address the contribution to be made by the trade unions and employees.

Policies should be written in simple language for those with literacy problems or translated for those who do not speak fluent English. Procedures should also be produced in Braille or large print formats, and employers should consider the availability of signers.

It should begin with a general declaration about the organisation’s commitment to ensuring that the workplace is free from harassment and what sanctions it will impose and against whom.

The policy should set out the definitions of harassment and give examples. It should state how far the protection extends, that is, beyond the workplace to conferences and other events. The policy should also state that it is up to the employee to decide what behaviour is unwelcome and that employees who make a complaint will not be victimised.

Duty of management

The policy should state what management will do about harassment and the responsibility of management to:

  • lead by example
  • promote awareness
  • respond sensitively
  • ensure that the alleged perpetrator is treated fairly
  • ensure there will be no victimisation
  • monitor and follow up the situation after a complaint is made so that harassment does not reoccur

Duty of employees

The policy should also set out the duty of employees to achieve, and contribute to achieving, a harassment free environment. It should make reference to the fact that harassment by non employees will not be tolerated.

Complaints procedure

The policy also needs to provide a complaints procedure to process and deal with any acts of harassment. The complaints procedure needs to be clear so that an employee knows what to do and who to approach. Time limits should be set for every stage of the investigation. It should be made clear that the complaints procedure is in addition to an employee's statutory right to make a complaint under the Employment Equality Act and point out the statutory time limits. It also needs to specifically address victimisation, the maintenance of confidentiality and sanctions, and set out both an informal and formal process.

In addition, it should identify a named person to assist in an informal resolution and to provide information to both employees and non employees on the procedure and policy in general. An informal process could involve mediation.

A formal complaints procedure may be appropriate where:

  • The employee making the complaint wishes it to be treated formally.
  • The alleged harassment is too serious to be treated under the informal procedure.
  • Informal attempts at resolution had been unsatisfactory.
  • The sexual harassment or harassment continues after the informal procedure has been followed.

At least two people should investigate the complaint. The investigation team should have gender balance and seek to ensure diversity across the other eight grounds. The investigation team should have received appropriate training and complaints should be resolved speedily.

If a right to appeal exists, both parties should be informed of it as well as the time limits and procedures involved. Both parties to a complaint should receive support and regular review following the investigation.

Where the accused is not an employee, they may not wish to participate in a formal procedure or it may not be possible to secure their participation. Nonetheless a non employee must be kept informed of all developments and given an opportunity to respond to them.

Communication

The policy should include a commitment to effective communication of the policy through the staff handbook, newsletters, training manuals, training courses leaflets, websites, emails and notice boards. Employees and those in management should be made aware of the policy as part of any formal induction process.

Summaries of the policy should be prominently displayed. Where this is not feasible, a short statement confirming the policy’s existence and the organisation's commitment to it will do instead. The code suggests inserting a reference to the policy in contracts with clients, customers and other business contacts with a clause that harassment may constitute a repudiation of the contract or may be grounds for the employer to treat the contract as at an end.

What the complainant and alleged perpetrator need to know

  • What the formal procedure entails and the relevant time frame.
  • The right to be accompanied/represented.
  • The complaint should be in writing.
  • The alleged perpetrator will be given full details in writing of the nature of the complaint including written statements and any other documentation or evidence including witness statements, interview notes or records of meetings held with the witnesses.
  • The alleged perpetrator will be given time to consider the documentation and an opportunity to respond.
  • Confidentiality will be maintained throughout any investigation to the greatest extent consistent with the requirements of a fair investigation.
  • Written records will be kept of all meetings and investigations.
  • The investigation will produce a written report to both parties outlining its findings and the reasons for its final decision.
  • If the complaint is upheld, the report will recommend whether the organisation’s disciplinary procedure should be invoked.
  • If the complaint is upheld against a non employee, a report should recommend appropriate sanctions against the non employee which could extend to exclusion of the individual from the premises, or suspension or termination of a supply, service or other contract.
  • The report may also, or as an alternative, recommend other actions such as training or more effective promotion of the organisation’s policy on harassment.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.