An employer’s defence to sexual harassment claims

Last updated: December 13th, 2023

First published: December 11th 2023
Last updated: December 11th 2023

While the vast majority of Christmas party celebrations pass off without any problems, there’s no doubt that employers need to ensure they take precautions to guard against the risk of sexual harassment and inappropriate behaviour when staff let their hair down.

The Workplace Relations Commission tends to direct employers to pay large sums in compensation in sexual harassment claims. As well as the financial risk, there are reputational consequences for businesses that fail to take a proactive approach to preventing sexual harassment.

To protect their position, employers should follow certain steps. Let’s take a closer look below…

Sexual harassment and discrimination

The Employment Equality Acts 1998-2015 (EEA) include a protection for employees against sexual harassment by their employer, fellow employees, clients, customers and other business contacts including any person the employer might reasonably expect the employee to come into contact with in the workplace.

If an employee suffers sexual harassment during the course of their employment, this is deemed to be discrimination by the employer.

What is sexual harassment?

The EEA define sexual harassment as “any form of unwanted conduct…any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose of affecting or violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

It’s important for employers to note that the test for sexual harassment is subjective and the Workplace Relations Commission will consider the effects of the conduct on the individual employee.

The unwanted conduct is also not confined to physical acts. Verbal conduct like making suggestive remarks or lewd comments along with non-verbal acts like circulating inappropriate content or making sexual gestures all come within the definition of sexual harassment.

The reasonable steps defence

The EEA do however afford a defence to employers who receive a sexual harassment claim. If the employer has taken all reasonable steps to ensure that their employees are not subject to sexual harassment during the course of their employment, they should be in a position to defend the claim.

Code of Practice

The Irish Human Rights and Equality Commission published a Code of Practice on Sexual Harassment and Harassment (Code) in 2022.

The Code confirms that employers are legally responsible for harassment suffered by employees in the course of their employment, unless they took reasonably practicable steps to prevent it, to reverse its effects and to prevent its recurrence.

The Code goes on to state that, ‘to rely on this defence, employers must have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action.’

Employers must also have an accessible complaints procedure and also ‘have a duty to act’ if they become aware of harassment in the absence of a complaint.

The Code is also careful to remind employers that they will not be able to rely on an excellent policy if it is not implemented.

Reasonable steps for employers to take

To ensure that you are in a position to defend harassment claims, it’s vital therefore that you take meaningful steps to implement your anti-harassment policy. Some reasonable steps might include:

Regular communication

Ensure that your anti-harassment policy is effectively communicated to employees. This should happen at the start of the employee’s term or during the formal induction process with any updates being passed on promptly. Ongoing communication as and when appropriate should also be part of the anti-harassment policy and procedures.

Prompt response to complaints

Employers must address harassment complaints promptly by way of a procedure that meets the standards set out in the Code.

Training

Training should be provided on a regular basis. Managers in particular who need to manage harassment complaints should be up to date with the latest guidance and any changes in your procedures may also require training for certain employees.

Preventative measures

Employers must also ensure that they are proactive in taking action to prevent harassment occurring in the first place. It won’t be enough simply to respond to issues as and when they arise.
This activity could include awareness-raising campaigns, tracking the nature of complaints being made through grievance procedures, carrying out staff surveys and other monitoring activity.

Policy reviews

Regular reviews should be carried out to ensure that the policy complies with the latest guidance.

Senior Level Champion

The Code recommends the appointment of a Senior Level Champion who is outside the HR structure in certain organisations. The ‘Champion’ should be an independent voice that promotes a diverse workplace culture free of harassment where all employees feel respected.

It is a matter for each organisation to determine if the appointment of a Senior Level Champion is appropriate.

Dignity at work policy and associated HR training

To protect your business against sexual harassment claims, you need a Dignity at Work policy that includes a complaints procedure that will investigate issues, communicate the outcomes to all parties involved and make appropriate sanctions where necessary.

Remember you will not be able to rely on an excellent policy if it is not implemented through effective communication and training so to find out more about protecting your business against harassment claims, call one of our HR experts today.

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