The Government have formally adopted a new code of practice on Harassment and Sexual Harassment in the workplace which looks at giving practical guidance to employers and employees on what is meant by harassment, sexual harassment, how it may be prevented, and what steps to take if it does occur. The Code of Practice is officially known as Statutory Instrument (S.I.) No. 208 of 2012. This area was previously governed by an older Statutory Instrument known as S.I. No. 78/2002, Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002. However due to updating of the Employment Equality Act in 2004 there were certain amendments that were essential and this has resulted in the new code of practice. There are a number of substantive changes between the older and newer codes and while some are merely referring to new sections of the Employment Equality Act, others are new definitions or clauses that have been inserted as a result of best practice and as such should be firmly taken note of by employers in Ireland.
Discriminatory Grounds
The explanation relating to some of the nine Discriminatory Grounds has been amended with “marital status” being amended to “civil status” with the new term extending equality protection to civil partnerships pursuant to the Rights and Obligations of Cohabitants Act, 2010. The explanation of “Age” has also been amended from being applicable to anyone between the ages of 18 and 65, to extending this to include anyone over the maximum age at which a person is statutorily obliged to attend school.
Definitions of Harassment & Sexual Harassment
The descriptions of Harassment and Sexual Harassment have been broadened in the new Code of Practice to “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.”
Remedies
The remedies open to an employee who has suffered harassment or sexual harassment has also been amended and this may have a significant impact on Irish employers. Previously the code of practice stated that the maximum award for any claim of harassment or sexual harassment was 104 weeks of the employee’s pay. However, this has been amended such that an employee is now able to claim up to 104 weeks’ pay or €40,000, whichever is the greater sum being the sum owed to an employee. This indicates that anyone over €20,000 per year would fall into the bracket of those receiving a maximum award of 104 weeks’ pay, however anyone below €20,000 per year may receive up to a maximum award of €40,000
Investigation of a Complaint
The section dealing with the investigation of a complaint of harassment or sexual harassment has been extended to include the provision that “…it is essential that the principles of natural justice be adhered to.” There is also the inclusion that “[e]xternal assistance may be necessary to deal with complaints in some circumstances so as to ensure impartiality, objectivity and fairness in an investigation.”
This addition may potentially impact on smaller companies who do not have the management structures or levels required to ensure that an independent or impartial person deal with complaints and as such may now require companies to hire external consultants to investigate such matters. Depending on how Tribunals interpret this clause in future, it may be possible that a company will be found to have acted unreasonably through their failure to engage external assistance.
Accessibility of Policies
The final amendment to the new Code of Practice relates to the accessibility of the policies for staff and states that “[c]ertain measures may be necessary to ensure the accessibility of policies and procedures, for example, the translation of policies and procedures into languages other than English as appropriate or the provision of interpreters.” This will undoubtedly raise an issue for employers as they may incur additional expense in the translation of policies and procedures for their employees in order to ensure that they fully understand their terms.
Employer Liability
Under the new Code of Practice an employer will be held legally responsible for the sexual harassment and harassment suffered by employees in the course of their work. That is unless the employer can show that they took reasonable steps to prevent sexual harassment and harassment from occurring in the first place, to reverse the effects of it and to prevent its reoccurrence.
By following the steps set out in the Code of Practice, the employer may avoid the liability for any such acts in any legal proceedings brought against them. However, the company must ensure they have policies and procedures in place to deal with these issues, and communicate these effectively to all employees, non-employees, and customers. These policies will need to focus on best practice, prevention, remedial action and also highlight an effective complaints procedure.
Effective means of communication have been highlighted in the code of practice, with a suggestion in that employers should consider a staff handbook to be distributed to all employees during induction and that this be updated regularly to reflect relevant changes. Employers will also need to ensure, as highlighted above, that employees find the policy accessible and if necessary it may be necessary to translate it into the employee’s first language, or a translator be brought in to ensure employees understand the policy.
A well-defined Personal Harassment policy will be a good starting point for ensuring the company fulfils its obligations under the legislation, and a clear induction process where the policy is communicated to management and employees will help ensure that employees and management are trained on the issues so that than an employer can avoid liability in any such claims. However, in order to ensure the Company holds no liability the focus must be not only on prevention of harassment but also on the prevention of any reoccurrence of harassment. Accordingly, an effective complaints/grievance procedure is vital to ensure an employee feels their complaint/grievance is resolved early and efficiently and also to ensure that the perpetrator is suitably sanctioned where appropriate.
Between the training and communication of the policy and effective Complaints/Grievance procedures, along with the monitoring of such polices, a company can ensure that they have fulfilled their obligations under the legislation and demonstrate a commitment to the prevention of sexual harassment and harassment from occurring or reoccurring.
However, if you are unsure of your obligations under the legislation in relation to Harassment and Sexual Harassment, or currently have an issue involving these matters please don’t hesitate to contact the Advice Service on 01 855 5050 and speak to one of our dedicated Employment Law Advisors.
