Recent media coverage of workplace sexual harassment serves to confirm that the topic is not going away. Whilst Lois West was telling the Workplace Relations Commission (WRC) about her sexual harassment experience at Garda Headquarters, the same forum was awarding an Indian chef  €143,000 for a host of labour law transgressions, including near daily sexual harassment from colleagues. Shortly thereafter, a healthcare assistant was awarded €30,000 by the Commission, for ‘serious racial and sexual harassment which made her legitimately fear for her safety’.

Sexual Harassment Defined

The most comprehensive and explicit provisions pertaining to the subject of sexual harassment at work feature in the Irish Human Rights and Equality Commission’s (IHREC) 2022 ‘Code of Practice on Harassment and Sexual Harassment’. Drawing on the Employment Equality Act 1998-2015, it defines sexual harassment 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, degrading, humiliating or offensive environment’. An accompanying extensive list of illustrative examples includes: ‘suggestive remarks, innuendo or lewd comments, graffiti, written materials, emails, text messages or social media posts .. leering, whistling or making sexually suggestive gestures .. derogatory or degrading abuse or insults which are gender-based .. conduct that insults or degrades an employee because she is pregnant or because s/he is transgender’. The same Code also warns that  management has a ‘particular responsibility’ with regard to adherence to the Code’s provisions, whilst reminding all of an employer’s (vicarious) liability, arising from the behaviour of their ‘co-employees, clients, customers or other business contacts’. The Code also details a range of procedures and processes to be applied in the event of a complaint materialising. Notably, this Code of Practice is admissible in (legal) proceedings taken on the matter.  

Harassment Headlines

As noted above, the subject of sexual harassment at work frequently hits the headlines. This is not surprising, given that in 2022 a Gallup survey found that more than 1 in 5 employees worldwide experienced 1 or more forms of harassment or violence at work. In Ireland, the Central Statistics Office reported in 2019 that almost 1 in 3 of the national workforce experienced bullying or harassment at work. Three years later it found that 1 in 5 adults had experienced sexual harassment in the previous year.

Only last year - shortly after Hollywood’s MeToo scandals peaked - Ireland hit the headlines when it was found that a victim of rape had been taunted by work colleagues (at her McDonald’s workplace in Castlebar) about the assault. This coincided with an admission by the same company that it was dealing with 2 sexual harassment cases per week in the UK. From an Irish perspective it is also disconcerting to note that in 2019 the ICTU found that 4 out of 5 victims of sexual harassment don’t report it and of those who do, few see a positive outcome from the process.

The Provisions

There is a wide range of provisions that are designed to prohibit sexual harassment at work. For example, in 2019 the influential International Labour Organisation adopted Convention No. 190 and  Recommendation No. 206, that are exclusively focused on eliminating harassment in the workplace. They were ratified by Ireland in 2023. And in addition to Article 21 of the Charter of Fundamental Rights - that prohibits this discriminatory malpractice - only last year the European Union passed a resolution acknowledging that ‘not enough’ was being done about the subject. Long before this, at its founding Congress (in 2006), the International Trade Union Confederation approved the ‘injury to one is an injury to all’ principle, whilst repeating its commitment to combat any discrimination, harassment or abuse of women. Then in 2020 the influential Trade Union Confederation adopted a code re.: ‘Zero tolerance for any violence and any type of harassment including sexual harassment’.

In this jurisdiction, the enactment most commonly deployed to address the topic is the aforementioned Employment Equality Act 1998-2015. This places an obligation on employers to take all reasonable steps to ensure a harassment-free environment.  Parties may also avail of provisions in the Safety, Health and Welfare at Work Act, 2005. Under this enactment, it may be adjudged that an employer is liable for not doing everything possible to protect the health, safety and well-being of employees and it can be used to channel associated penalisation allegations.  Alternatively, parties may take the common law route, relying upon an employer’s general duty of care for their employees, to process claims in fora where there are less limits on compensation than those provided for in the equality legislation.

That is, under the equality enactment, the maximum that can be awarded to a complainant in receipt of pay at the time of the referral of the claim (or dismissal) by the WRC and the Labour Court (on appeal) is 104 weeks of pay (or €40,000, if greater). For other complainants, the maximum award is €13,000 (for example, complaints relating to access to employment). However, there is no limit on the amount of compensation that can be awarded by the Circuit Court arising from gender-based harassment complaints. Notably, an order for equal treatment or for a specified course of action may also be made under the equality enactment. A less common route taken by complainants - than via equality law - is under the Industrial Relations Act 1969-2015.

Case Precedents

A rare instance of the aforementioned industrial relations legislative route being taken on this topic transpired in a multiple claim in 2018, when a non-EEA national was awarded €10,000, under the Industrial Relations Acts 1969-2015, for sexual harassment by her boss, who persisted in touching and kissing her (ADJ-00008699).  More recently, in February 2024, in another case taken via the Industrial Relations Act, an employer who failed to manage an investigation into a sexual harassment allegation in a ‘timely manner’ was directed to pay a complainant €15,000. The WRC concluded that the worker was the victim of sexual harassment, but that ‘In the words of William Ewart Gladstone (1868)  ‘Justice delayed is Justice denied’ ’ and it should not have taken over 3 months to complete the process (IR - SC – 00001499).

As noted, the most common route taken by complainants in respect of sexual harassment is via the Employment Equality Act. For example, only last year the WRC made the maximum award of 2 years’ remuneration against An Post – incorporating what is known as the European Court of Justice’s Von Colson principle, that awards be ‘effective, proportionate and dissuasive’ -  due to the ‘effects of the discrimination’ and the mishandling of the investigation (ADJ-00040021). The same principle was applied by the Labour Court in 2021, when it awarded €20,000 against Costa Coffee arising from sexual harassment by a manager who posted inappropriate messages in an employees’ WhatsApp group, as it was: ‘shocked’ that there was ‘no policy on sexual harassment’ and ‘no training provided to employees’ (EDA2128).

In 2022 Socrates Workforce Solutions Ltd. was held liable to the tune of €90,000, arising from a sexual harassment and penalisation claim, as it was deemed that the employer failed to undertake a proper investigation and ‘did not deem it necessary to place the alleged harasser on suspension with pay or move him to another area until the investigation process was complete’ (ADJ-00035281). Notably, €25,000 of this award related to penalisation, under the aforementioned Safety, Health and Welfare at Work Act.  Similarly, 2 years earlier a nursing home had to pay out €150,000 to 3 unfairly dismissed care assistants, as the WRC noted that it was ‘irrelevant that the harasser did not intend to harass the victim or believed it was mere workplace banter or frolic’. In this instance, the complainants did avail of equality law to process their claim, albeit alongside the aforementioned health and safety enactment in respect of the ‘the distress suffered .. and the effects of the penalisation’ (ADJ-15039/40/46).

Returning to the relevance of the behaviour of ‘clients, customers or other business contacts’, it is notable that in 2019 the Labour Court issued a ruling that Waterford Institute of Technology must pay a lecturer €10,000 for sexual harassment perpetrated by students (EDA1931). Coincidentally, only last year, the Uluru bar in Waterford had to pay out  €15,000 on foot of a Labour Court award to a female bar worker in compensation for constructive dismissal, after a customer had sent her a text which she described as: ‘vile, humiliating, degrading and disgusting’. In this instance, the Court held that the complainant’s evidence was not that she resigned due to the behaviour of the customer, but due to the behaviour of the Managing Director, who ‘failed to take all reasonable steps to ensure that she felt safe and was respected … and to ensure that she was not exposed to unreasonable and unacceptable working conditions’ (UDD2322).

A noteworthy precedent on this subject that surfaced earlier this year at the WRC concluded that though the complainant had not established a prima facie case of discrimination, it was held that the complainant was sexually harassed and the respondent was directed to pay €3,500 in compensation (ADJ-00045361). The norm in such scenarios – to shift the burden of proof from the complainant to the respondent – is that the complainant’s case must pass the ‘Mitchell’ test and prove that the primary facts raise a presumption of discrimination that is within the range of reasonable inferences  (i.e. the ‘prima facie’ case calls for an answer - see Mitchell v Southern Health Board [2001] 12 ELR 201). Explaining the decision, the Commission’s Adjudication Officer referred to: ‘Chapter 12.22 of ‘Employment Equality Law’ .. sexual harassment is actionable per se and does not require to be specifically linked to a discriminatory ground and it does not require a comparator’. The same judgement also served as a reminder that the harassment test ‘is a subjective one and the intention of the perpetrator of the harassment or sexual harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. The conduct should be viewed from the perspective of the victim’. In this instance the respondent was also ordered to review its policy on the subject and the ‘effectiveness or arrangements .. to communicate the policy’.

Flawed Investigations

Despite these precedents and the array of remedial routes available to complainants in respect of sexual harassment, dismissal/disciplinary action taken against the perpetrators can rebound. That is, in addition to the disappointment and frustration experienced by complainants, (successfully) accused parties can also return like a boomerang and hit an employer where it hurts. For example, in 2019 it was recorded that the harasser had leaned towards his female colleague ‘making a gesture for a kiss’. He subsequently secured an award of €17,500, as – given his record - the summary dismissal was deemed a ‘punishment that did not fit the crime’ and it was unfair on both procedural and substantive grounds (ADJ-00020741). Then in 2020, a store manager was awarded €15,000 for his unfair dismissal associated with ‘hugging .. inappropriate behaviour .. and physical touching’ of staff, as the WRC warned that ‘a fair investigation forms the cornerstone of all fair dismissals’. However in this instance the investigation was adjudged to have been ‘deeply flawed, defunct, unreliable’ (ADJ-00020602).

‘How To’

As noted in the aforementioned An Post case, the mishandling of harassment investigations can be costly. In this regard, it is notable that the aforementioned IHREC’s Code on the subject recommends that such investigations should ensure ‘procedural fairness ’ and adhere to the ‘principles of natural justice’.

In summary, it is apparent from case precedent, that for an employer to successfully defend their position - in relying upon Section 14A of the equality enactment - their ‘reasonably practicable’ approach to the subject should be comprised of: (i) an up to date, comprehensive and available policy, (ii) training thereon (incl. refreshers) and (iii) an appropriate response to allegations, that is in line with the aforementioned policy. In this regard it is notable how (in 2018) the WRC found that – though ‘impressed with the evidence of the complainant that she experienced unwelcome verbal conduct of a sexual nature’ – the employer had demonstrated that it had dealt with the matter ‘in a reasonable fashion’, and so successfully defended its position (ADJ-00008243). Likewise, in the Stryker Orthopaedic case, SIPTU argued that the bullying and harassment investigation was ‘fundamentally flawed and that the findings cannot be relied on’. However, the Court concluded that all procedures were fully followed by the employer (LCR21993). That is, the three-pronged approach outlined above will serve to keep the employer ‘onside’ and avoid liability in this topical and tricky area.

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Workplace Harassment and Sexual Harassment - Elearning Course

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