Harassment is also prohibited by the equality legislation. Harassment is defined as any form of unwanted conduct related to any of the nine discriminatory grounds. Harassment occurs where the conduct 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.
Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose and effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
Where an employee is harassed either in the workplace or otherwise in the course of their employment by their employer, a fellow employee or a client, customer or other business contact of the employer, that harassment constitutes discrimination. It is a defence, however, for the employer to prove they took reasonable practicable steps to prevent the harassment.
A recent decision of the Labour Court in January 2016 in A Store v A Worker (EDA163) resulted in an award of €15,000 against the employer even though the employer had an anti-harassment policy in place and displayed prominently for all employees to see. The case clearly shows the importance for employers of knowing the difference between harmless banter and actionable harassment.
The distinguishing factor in this case was that the comments were unwelcome and unwanted and as such constituted sexual harassment within the meaning of the Acts. The Labour Court then had to consider whether the employer could avail of the defence set out in Section 14A(2)(a) of the Acts - whether the employer had taken such steps as are reasonably practicable to prevent the sexual harassment of the employee. The Court found that it had not for the following reasons:
- It was not satisfied that the importance of the policy was properly understood by the employee's manager who was responsible for its implementation.
- The Court noted that the policy was only available in English, which was not the native language of the perpetrators.
- While the Court acknowledged that the employer had a handbook, that it contained an anti-harassment policy and that the policy was also displayed in the staff area of the store, it found that the policy was not properly or adequately applied in practice.
The message from the case is clear - the Irish courts will be guided by not only the policy that an employer has in place, but how effectively that policy is implemented.