Harassment & Bullying in the Workplace

Harassment & Sexual Harassment in the Workplace Equality Act 2004, section 14A deals with harassment & sexual harassment in the workplace. (s.14A repealed both sections 23 & 32 of the Employment Equality Act 1998). S.14A also introduced changes to the definition of harassment and sexual harassment so that the occurrence of either will constitute unlawful discrimination by the victim’s employer in relation to the conditions of employment. Bullying is not covered by the legislation.

Legal Definitions of Harassment & Sexual Harassment An employee, ‘the victim’ can be harassed or sexually harassed either at a place where the employee is employed or otherwise in the course of his or her employment. Harasser can be another employee, the victim’s employer or a client, customer or other business contact of the victim’s employer. The circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it.

Harassment & Discrimination If such harassment or sexual harassment has occurred & the victim rejects or accepts the harassment & is treated differently in the workplace because of this, this constitutes discrimination. Such harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

Harassment in the Workplace This is a specific form of discrimination in relation to the conditions of employment based on one or more of nine specified discriminatory grounds. Regulated by the Equality Act 2004; Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (S.I. No.78 of 2002). Definition of ‘harassment’ has been created – distinct entitlements & a specific regime for employees to challenge harassing behaviour, as a wrong in itself, when it is based on one of the nine specified grounds in the equality legislation. One single incident can constitute harassment or sexual harassment.

Definition of Harassment & Sexual Harassment Section 14A(7)(a) defines harassment and sexual harassment: (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to 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”.

What Constitutes Harassment? Harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds. Such conduct has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. An employee may be harassed in the workplace; or is subjected to harassment outside the workplace to work- related harassment.

Employment Equality Act 1998 (Code of Practice) (Harassment) Order (2002) A wide range of behaviour may amount to harassment: Verbal harassment – jokes, comments, ridicule or songs. Dec-E A Worker v An Engineering Company Physical harassment – jostling, shoving or any form of assault. Written harassment – faxes, s, text messages, bulletins or notices. Intimidatory harassment – gestures, posturing or intimidatory poses. Isolation or exclusion from social activities. Dec-E Odion v Techniform (Waterford) Ltd Pressure to behave in a manner that the employee thinks is unsuitable e.g. requirement to dress in a manner unsuited to a person’s ethnic or religious background or belief. Attributes – harassment can occur where employee harassed for physical or social feature e.g. accent, hair colour, dietary regime or dress code.

Sexual Harassment This is a specific form of discrimination on grounds of gender but with a sexual motivation. Sexual harassment – any form of unwanted verbal, non- verbal or physical conduct of a sexual nature. That conduct has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Sexual Harassment in the Workplace Can take place in the workplace. Can also occur outside the workplace to work-related harassment. Physical conduct of a sexual nature – unwelcome behaviour would include e.g. touching; patting; pinching; brushing against another employee’s body; assault; or coercive sexual intercourse. DEC-E Ms A v A Contract Cleaning Company Verbal conduct of a sexual nature – includes behaviour such as unwelcome: sexual advances; propositions; pressure for sexual activity; continued suggestions for social activity outside the workplace after it has been made clear that such suggestions are unwelcome; unwanted or offensive flirtations and suggestive remarks; lewd innuendo and comments. DEC-E Ms A v A Gym Non-verbal conduct of a sexual nature – can include the display of pornographic or sexually suggestive pictures; objects; written materials; s; faxes; mobile telephone text messages. Dec-E An Office Worker v A Security Company; DEC-E A Female Employee v A Recruitment Company Sex-based conduct – conduct that denigrates, ridicules or is intimidatory or physically abusive of an employee on the grounds of his or her gender.

Proving the Claim S.85A – burden of proof in harassment and sexual harassment claims rests initially with the complainant who must establish prima facie evidence that the harassment or sexual harassment did in fact take place. Then the burden shifts to the employer to prove that s/he took reasonable steps to prevent the harassment or sexual harassment. DEC-E Ms CL v CRM DEC-E Ms A v A Contract Cleaning Company The amendment to the definition of sexual harassment and harassment under the Equality Act 2004 to meaning any ‘unwanted’ conduct means that the test for sexual harassment is subjective. Therefore it is now necessary to analyse the conduct from the perspective of the victim alone because the legislation requires that the unwanted conduct must have ‘the purpose or effect of violating a person’s dignity’. Complainants will have to demonstrate that the conduct is unwanted. It is irrelevant to consider the perpetrator’s perspective or intention in relation to any such conduct, as section 14A (7) (b) refers to the ‘purpose or effect’ of the conduct ‘violating a person’s dignity’. It is unnecessary to establish whether the perpetrator had the deliberate intention of sexually harassing or harassing the victim. It is the effect of the behaviour on the employee that is important.

Victimisation Section 74(2) of the Employment Equality Acts provides that: “…victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to – (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant…”. If an employee makes a complaint to the employer of discrimination on the grounds that he or she has been subject to harassment or sexual harassment and is treated differently as a consequence of complaining (or is dismissed) the complainant can initiate a claim of victimisation.

Victimisation DEC-E Ms A v A Contract Cleaning Company DEC-E A Female Employee v A Recruitment Company Employment Equality Acts, s 14A(3) provides protection to an employee who is treated differently in the course of his or her employment (for example, as regards to any opportunities for promotion or access to training opportunities) subsequent to the employee’s rejection or acceptance of any harassment or sexual harassment that occurs. DEC-E Ms Z v A Hotel

Scope of the prohibition S.14A(1)(a) of the Employment Equality Acts, harassment or sexual harassment can occur at the employee’s place of work, or otherwise in the course of his or her employment. The Code of Practice on Sexual Harassment and Harassment at Work provides that the prohibition on harassment and sexual harassment extends to work-related events which take place outside the workplace, or events that employees attend in the course of employment, such as conferences, workshops, business trips or training events. A Limited Company v One Female Employee EE 10/ complainant alleged that she had been sexually harassed when she was attending a residential company training programme in a hotel.

Scope of the prohibition Prohibition also extends to non-workplace harassment or sexual harassment that occurs at work-related social events, particularly if such events have been officially organised by the employer. A Female Employee v A Recruitment Company,DEC- E the complainant received lewd and sexually suggestive texts from her manager after a work night out. Maguire v North Eastern Health Board, DEC-E , the Equality Tribunal determined that harassment which took place at an office Christmas party constituted discrimination within the scope of the legislation. In this case, the complainant successfully argued that he had been discriminated against on the grounds that he was a member of the Traveller Community. He also successfully argued that he had been subject to harassment for this at the Christmas party, on the basis that he was referred to by a colleague as a “knacker”.

Scope of the Prohibition Extends to work-related events or events employees attend in the course of their employment e.g. conferences, training seminars. May also extend to work-related social events particularly if these have been arranged and organised officially by an employer. Different treatment in course of employment due to rejection/acceptance of harassment is covered. 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.

Scope of the prohibition An employer who provides funding for social events could, therefore, potentially be held liable for any harassment or sexual harassment that occurs at such events. Ms O’N v An Insurance Company,DEC-E , the respondent was found not to be liable for sexual harassment that occurred at a social club function, which was part-funded by the employer. The Tribunal concluded that, while an incident of sexual harassment did occur at a pub quiz, on the night in question the complainant had not been attending the social club in the course of her employment.

Who are the harassers? An employer can be held vicariously liable for the harassment or sexual harassment of its employees. Section 15(1) of the Employment Equality Acts provides that: “[a]nything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”. Essentially, therefore, the principle of vicarious liability means that a defendant employer can be held liable for the wrongdoing of its employee: “in this respect the principle is a species of strict liability, in that it is not necessary at all to prove any fault or moral blameworthiness on the part of the defendant employer”.

Who are the harassers? Section 15(3) of the Employment Equality Acts, however, provides a defence to the employer where it can show it took such steps as were “reasonably practicable” to prevent the prohibited acts from occurring. Section 14A(1) of the Employment Equality Acts protects employees from harassment or sexual harassment by the employer or another employee of the employer. Section 14A(4) protects employees from harassment or sexual harassment by a client, customer or other business contact of the victim’s employer; this includes “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”. DEC-E Ms A v A Contract Cleaning Company DEC-E BH v A Named Company Atkinson v Carty & Others [2005] 16 ELR 1

Who are the harassers? The Employment Equality Acts protect employees from harassment by: - an employer; - fellow employees; - clients of the business; - customers; - other business contacts – any person with whom the employer might reasonably expect the employee to come into contract within the workplace e.g. suppliers, delivery persons, interns etc.

Employers’ defences The employer must prove that he/she took such steps as are reasonably practicable to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim. The employer must prove that he/she took such steps as are reasonably practicable 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.

Employers’ Defences - 2 Employers are legally responsible for harassment or sexual harassment carried out. To rely on this defence, the employer will have to show that s/he has comprehensive, effective policies in place that focus on prevention, best practice, remedial action and an accessible, effective complaints procedure. Steps taken to put the policies and procedures into practice will be taken into account. Policies must be effectively & meaningfully implemented.

Hearing of Claims, Time Limits The Equality Tribunal. The Labour Court. The Circuit Court. Complaint must be made within 6 months of the alleged incident of harassment or sexual harassment or of the latest incident of such behaviour to which the claim relates. In exceptional cases, this can be extended up to 12 months. This 6 month period applies to taking a claim to the Labour Court and the Circuit Court.

Remedies Compensation – maximum amount is 104 weeks remuneration by the Office of the Director of Equality Investigations/ Labour Court; normal jurisdictional amount of the Circuit Court is not applicable. Reinstatement or re-engagement – Labour Court or Circuit Court can order these with or without compensation. Criminal conviction is possible for ‘victimisation’ and obstruction of proceedings by the Labour Court or Office of the Director of Equality Investigations – employer can be prosecuted summarily & can be fined or imprisoned or both.

Equality Tribunal decisions DEC-E – A Receptionist v A Hotel - €30,000 awarded for the effects of the sexual harassment and discriminatory dismissal suffered. DEC-E Ms CL v CRM - €1,000 awarded for stress suffered as consequence of sexual harassment. DEC-E Ms A v A Gym – awarded €5,000 for discrimination when she was sexually harassed. DEC-E Ms A v A Contract Cleaning Company – complainant awarded the maximum compensation allowed - €21,000 for sexual harassment & victimisation.

Bullying in the Workplace Report of the Task Force on the Prevention of Workplace Bullying: Dignity at Work, The Challenge of Workplace Bullying (2001). Code of Practice on Workplace Bullying (2002). Health and safety issue.

Definition of Bullying “Repeated, inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of behaviour described in this definition may be an affront to dignity at work but, as a once-off incident, is not considered to be bullying.”

How to deal with bullying in the workplace Bullying must be distinguished from inter- personal conflicts. Prevention of bullying relates to the prevention of repeated conduct that can reasonably be regarded as attacking and undermining dignity. ‘Banter’, ‘slagging’ or ‘horseplay’ may in fact be reasonably regarded as manifesting bullying behaviour that should prompt the employer to act.

Employer’s duty Early action should be taken to prevent bullying. Implement preventative system of workplace bullying. Specific action to deal with complaints of bullying. Take positive action to prevent bullying. Involve employees and representatives to improve the social work environment.

Risk Assessment A number of factors are associated with the workplace which may expose an employee to a greater risk of bullying. Employment tenure; size of the workforce; organisation culture; organisational change in the workplace; management of relationships in the workplace; gender/age imbalance; public interface. Service industry particularly prone to intimidatory or hostile conduct. Employee can now blame his own employer when he is bullied by members of the public in the workplace or in the course of his employment if the employer leaves their occurrence unchecked.

Precautionary Measures Introduce & implement an effective anti-bullying culture. Introduce a positive work environment. Introduce an anti-bullying policy. Training & instruction. Awareness, supervision & training. Job design. Acknowledgement of every employee’s responsibility to protect their own & others safety & welfare at work by not engaging in bullying. Appropriate grievance procedures in place.

Consequences of Failure to Address Bullying Bullying claims may be dealt with through industrial relations route, the constructive dismissal route or the health and safety route. Allen v Independent Newspapers [2002] ELR 84 – stress and bullying in the workplace. Claimant awarded £70,500 (Irish pounds) in compensation. Monaghan v Sherry Brothers Ltd UD 376/2002

Bullying, Stress and Psychiatric Injury The general principles of the law of negligence apply in this area: of particular importance is the extent to which an employer owes a duty of care to employees for personal injuries resulting from bullying or work-related stress. McGrath v Trintech Technologies Ltd [2005] 4 IR 382 Maher v Jabil Global Services Ltd [2008] 1 IR 25