What steps should employers take to ensure that they can defend a sexual harassment claim?

In a recent determination published by the Labour Court (EDA175) the necessity for all employers regardless of size to have in place a written policy on harassment in the workplace was once again stressed.

The case concerned an appeal by the Complainant against the decision of an Adjudication Officer that did not upheld her complaint of gender discrimination, harassment and sexual harassment. The Complainant had been employed in a department store concession since August 2014 and had alleged that an employee from another concession had subjected her to harassment and sexual harassment during the period July – September 2015. The Complainant contended that her employer had no policy in place and had failed to take appropriate actions to protect her on foot of the incidents that occurred, which led her to being treated for a psychological illness. The claimant outlined that the Employment Equality Act 1998 Code of Practice on Harassment 2012 placed a significant emphasis on employers having a policy in place and offered practical assistance in this regard.

The Respondent said that the Complainant had not made them aware of any inappropriate behaviour or made a complaint and it was only when a manager directly observed an incident in August 2015 that they were in a position to act.  This involved the harasser’s manager being spoken to and subsequently to the harasser being asked to stop harassing the complainant after a further incident was witnessed on 7th September 2015. The Respondent also said that the Complainant when originally spoken to by the manager who witnessed the inappropriate behaviour had said that she did not want the alleged harasser spoken to. An investigation was then commenced on the 15h September with relevant witness statements taken. The alleged harasser was suspended and resigned when he was told that he would not be coming back to work in the Store. The Respondent further stated that they were not obliged to follow the recommendations of the Code of Practice and that the size and structure of the organisation needed to be taken into account in this regard and that they had acted as soon as aware of the inappropriate behaviour.

The conduct that formed the allegations of harassment was not disputed between the parties and was found to have been inappropriate behaviour of a sexual nature that constituted sexual harassment. 

The Court agreed with the Complainant and said that whilst the employer had since introduced a policy on Harassment, they could not rely on the defence available in Section 14A (2) of the Equality Acts with regard to taking such steps as were reasonably practicable to prevent the harassment occurring. The Respondent therefore was held liable for the discrimination that had occurred as it had not taken appropriate measures to prevent it’s occurrence despite taking reasonable steps to deal with the inappropriate conduct once it was observed. The Court therefore awarded the Complainant €5,000 for distress and the effects of the sexual harassment constituting discrimination.