Harassment

Overview of Harassment

Earlier versions of the equality legislation categorised some types of harassment, as a form of direct discrimination. Complainants were required to show that they had been treated less favourably than the relevant comparator.

The Employment Equality Act and the Equal Status Act expressly prohibit harassment in itself. They do not require a comparator. They define harassment as any form of unwanted conduct related to any discriminatory ground. Sexual harassment need not relate to any of the discriminatory grounds. There is an absolute prohibition on unwanted conduct related to a discriminatory ground or of a sexual nature.

Harassment, other than sexual harassment must be related to one of the prohibited grounds of discrimination. Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which 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.

The unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. There may be harassment by actions or words or by a combination of words and actions. Harassment (or sexual harassment) may be conducted by a man against a man; a man against a woman, a woman against a man or a woman against a woman.


Harassment in Employment

It is harassment by the employer where an employee is harassed or sexually harassed either at a place where the employee is employed or otherwise in the course of his or her employment by a person who is employed at that place or by the same employer, the victim’s employer, or a client, customer or another business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it.

It is also deemed to be harassment by the employer where such harassment has occurred, and either

  • the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
  • it could reasonably be anticipated that he or she would be so treated.,

The harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.


Employer Liability for Harassment I

An employer may be liable for workplace harassment (including sexual harassment) directly, vicariously or by failing to prevent it. An employer or institution may be liable for harassment perpetrated by a third-party who was present, unless he took reasonably practicable steps to prevent it.

If harassment or sexual harassment of the victim by a person other than his or her employer would otherwise be regarded as discrimination by the employer under the above test, then, it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

  • in the first case above (whether or not the second case also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
  • in the second case, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

Employer Liability for Harassment II

A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

A client, customer or other business contact of the victim’s employer is deemed to include a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

An ‘employee’ includes an individual who is seeking or using any service provided by an employment agency and participating in any course or facility. Accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.


Sexual Harassment

Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature.  It is conduct which has the purpose or effect of violating a person’s dignity, by creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.  It may include acts, requests, spoken words, gestures, the display or circulation of written words, pictures and other materials.  It may include text messages, graffiti and website content.

A person shall not sexually harass or harass another person where the victim

  • avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
  • is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or
  • is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment at which the person is in a position of authority.

Examples of Sexual Harassment I

There is a wide range of actions, conduct and circumstances which may constitute sexual harassment. It may be physical, verbal or non-verbal. Most cases have arisen from words spoken, whether alone or with gestures.  However, there may be sexual harassment by reason of a hostile environment.

The following are broad examples. Some of the below instances will almost always constitute sexual harassment. Other may be more situation specific. The particular circumstances of the case will determine the position.

Examples of Verbal Harassement include

  • requesting of sexual favours;
  • sending unwanted suggestive letters, notes or e-mails;
  • disparaging comments;
  • derogatory remarks about a person’s sexual orientation or gender identity;
  • inappropriate sexual comments about clothing, personal behaviour or a person’s body;
  • telling sexual or sex-based inappropriate jokes;
  • inquiring about sexual history or sexual orientation;
  • making sexual innuendos;
  • repeatedly asking someone out;
  • telling lewd jokes or sharing sexual anecdotes.

Examples of Sexual Harassment II

Examples of physical harassment include

  • blocking a person’s physical movement;
  • inappropriate and unwanted touching of a person and/ or their clothing;
  • other inappropriate touching including kissing, hugging, patting, stroking or rubbing;
  • purposefully brushing up against another person.

Examples of non-verbal harassment include

  • looking a person’s body up and down;
  • whistling or staring in a sexually suggestive or offensive manner;
  • offensive gestures or facial expressions of a sexual nature;
  • following a person;
  • making inappropriate sexual gestures.

Examples of Sexual Harassment III

Examples of visual / envoronmental harassment include

  • posters, drawings, pictures, screensavers or emails that are in sexual nature
  • sharing sexually inappropriate images or videos, such as pornography, with co-workers
  • displaying inappropriate sexual images or posters in the workplace

Any difference in treatment in the workplace or the reasonable expectation of a difference in treatment, due to the rejection or acceptance of sexual harassment constitutes sexual harassment, regardless of the context in which the harassment takes place.

If sexual harassment is established, it is a matter for the employer to show he took reasonable steps to prevent the harassment, in order to avoid liability.  Suitable steps include adopting codes and practices, procedures, policies and training.


Ordinary Harassment

“Ordinary” harassment may be shown if the conduct, otherwise than on the gender ground, is offensive humiliating or intimidating. Complaints of “ordinary” harassment must show that there was unwanted conduct, related to one of the prohibited grounds and that that the conduct had the purpose or effect of violating the dignity of the victim, or of creating an intimidating, hostile, degrading humiliating or offensive environment.

Where the behaviour and attitude, including its tone and context, is intimidating or humiliating, there may be harassment for the purpose of the legislation. Comments which may appear relatively neutral, may in their context constitute harassment because they are demeaning, abusive and undermine the person referred to.  Actions accompanied by a comment may cause otherwise innocuous behaviour or an otherwise innocuous comment, to constitute harassment.

A hypothetical comparator may be used to establish the discriminatory element in the harassment.  If it is shown that a hypothetical person, not having the relevant characteristics, would not have been so treated, then there may be harassment. The behaviour need not refer to the characteristic associated with the prohibited discriminatory ground in question.


Examples of Ordinary Harassment

As with sexual harassment, “ordinary” harassment may be verbal, non-verbal, physical or environmental.  The harassment must be more than mere unpleasant behaviour in itself. It must be linked to a discriminatory ground. The following are examples. The context will be critical in determining whether or not there is harassment under equality legislation.

  • making negative comments about an employee’s personal religious beliefs;
  • trying to convert to a certain religious ideology;
  • using racist slang, phrases, or nicknames;
  • remarks about an individual’s skin colour or other ethnic traits;
  • displaying racist drawings, or posters that might be offensive to a particular group;
  • making offensive gestures;
  • making offensive reference to an individual’s mental or physical disability;
  • sharing inappropriate images, videos, e-mails, letters, or notes in an offensive nature;
  • offensively talking about negative racial, ethnic, or religious stereotypes;
  • making derogatory age-related comments;
  • wearing clothing that could be offensive to a particular ethnic group.

Many successful harassment complaints (mainly outside the employment context)have been taken on the traveller and disability grounds. They commonly involve demeaning and abusive remarks.  Many cases  have involved harassment against persons in wheelchairs or who are otherwise   disabled. There has been held to be harassment, where disabled persons have been embarrassed or treated in a humiliating fashion, which not have occurred in relation to a person without the disability.


Vicarious Liability of Employer

In accordance with general principles of law, an employer or other body is vicariously liable for persons under its control.  The most common instance of vicarious liability is that of employers for their employees. The Equality legislation provides that anything done by a person in the course of his employment shall be treated as the act of the employer, whether or not it was done with the employer’s knowledge or approval.

Service providers and the providers of goods may be liable for discriminatory conduct on the part of the employees in the course of employment. In order to be “in the course of employment”, there must be some connection with the employment.  An incident happening outside of work hours, the workplace and the work context, is unlikely to be “in the course of employment”, in most cases.

A principal is liable for discrimination by his agent, where the acts (etc.)  have been undertaken with his express or implied authority. Anything done by a person, his agent or other with his authority express or implied, is treated as his act.


Limits to Vicarious Liability

In proceedings under the Act against an employer in respect of an act alleged to be done by an employee, it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the employee from doing the act or from doing acts of that description in the course of employment.

The question can arise as to whether an employer is liable for intentional wrongdoing and offences.  In some cases, serious misconduct, such as sexual assault, has been held to be outside the scope of the employee’s duties on general principles.  However, the Equal Status Act appears to intend to   broaden the common-law principle of vicarious liability.

In order to be “in the course of employment”, there must be some connection with the employment.  An incident happening outside of work hours and the workplace is unlikely to be in the course of employment in most cases. An incident concerning an employee at a work function may be the subject to vicarious liability.


Code of Practice

The Code of Practice on Sexual Harassment and Harassment in Work, made under the Employment Equality Act, gives guidance on what should be done, to reduce the risk of employer liability. It requires employers to act in a preventative and remedial way.

In order to avoid liability, the Code recommends that there should be comprehensive, accessible and effective policies, which focus on prevention, best practice and remedial action.  There must be an accessible, effective complaints procedure. Procedures must put in place to deal with incidents. Appropriate investigative and follow-up action should be taken in relation to incidents.

Staff training and employment policies are critical.  Policies must be implemented and monitored as appropriate.  Staff should be trained in the requirements of the legislation.


Workplace Policies

Employers should have a Dignity At Work Policy . It should set out what employee should do if he or she  believes that he / shey has been subject to harassment or sexual harassment in the workplace.

The policy will commonly make a number of approaches available to an employee:

  • informal procedure,
  • mediation or
  • formal procedure

Although most employers would wish to see complaints resolved as informally as possible, the policy should confirm that the employee has the right to seek to have his / her complaint formally investigated where this is appropriate.


Harassment of Third Parties

A person shall not harass (sexually or otherwise) another person where the latter seeks to avail of a service or purchase goods. A person who is responsible for the operation of an establishment at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or other harassment at that place.

It is an offence to procure or attempt to procure another person to engage or procure another person to engage in discrimination, sexual harassment or harassment or to permit sexual harassment or harassment of a person.

Employers may incur liability to members of the public for harassment perpetrated by their employees. Businesses and institutions must take active steps in order to prevent harassment or discrimination occurring in their premises or in the conduct of their business.

It is a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or other harassment. This, requires at a minimum,  a policy and appropriate training. The policy should be implemented.  There should be a responsible senior member of staff designated to deal with incidents.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.12

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017) Ch. 7

Employment Law in Ireland Cox & Ryan 2009 Ch 10

Equality Law in the Work Place Purdy 2015

Equality Law in Ireland  Reid 2012

Employment Equality Law  Bolger and Bruton 2012

Irish Employment Equality Law McCurtain and O’Higgins 1989

Disability Discrimination Law Smith        2010

Equal Status Acts Discrimination in Goods & Services Walsh 2012

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Statutes

Employment Equality Act 1998 (21/1998)

Equality Act 2004 (24/2004), Part 2

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), insofar as it relates to the previous two Acts

Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26

Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017