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Harassment and Victimisation: Employment Equality

Employment Equality litigation is increasing every year and employers and employees should be aware of their respective obligations and rights under the Employment Equality Acts 1998 – 2008. These Acts outlaw not only discrimination at work but also harassment including sexual harassment and victimisation on the nine grounds set out in the Acts. Any complaints under these Acts are referred to the Equality Tribunal which is an independent State body in Ireland set up to investigate or mediate complaints of discrimination.

Harassment/Victimisation
The Employment Equality Acts prohibit harassment at work which is defined as "unwanted conduct" relating to any one of the nine discriminatory grounds detailed below. Unwanted conduct refers to spoken words, gestures or the production or display of unwritten words, pictures and other materials. Sexual harassment is any form of "unwanted verbal, non-verbal or physical conduct of a sexual nature". Harassment at work can be inflicted by fellow workers or a boss, a superior, a client or a customer or any business contact.

An employer should have a policy setting out the guidelines for what is considered appropriate behaviour and also the procedures to deal with and prevent harassment at work. An effective grievance or complaints procedure should be in place to deal with complaints about harassment. All employees must be aware of these policy and procedures. The Equality Authority has published a Code of Practice on Sexual Harassment and Harassment at Work, aimed at employers, employees, and trade unions that clearly explains the rights, responsibilities and obligations of the various parties.

A claim for harassment under one of the nine discriminatory grounds is covered by the Equality Acts and can be brought before the Equality Tribunal. However, if a claim does not relate to one of the discriminatory grounds, then it is a health and safety issue. A defence is available where the employer can prove that they took such steps as were "reasonably practicable" to prevent the employee's harassment or to prevent them from being treated differently in the course of their employment. What seems to be required is a policy on harassment along with appropriate training for employees and appropriate persons and treating such behaviour as a disciplinary matter.

As well as outlining discrimination and harassment, the Act makes specific provision for a person who has been penalised or victimised for having lawfully opposed an unlawful act, for having taken proceedings or having given evidence in such proceedings or having indicated an intention to take proceedings. A number of cases where clear victimisation was upheld suggest that compensation for victimisation can be significant and frequently more than compensation awarded for actual discrimination.

Grounds for claim
The Acts prohibit discrimination and victimisation on the following nine grounds:

• gender
• marital status
• family status
• age
• race
• religion
• disability
• sexual orientation
• membership of the Traveller community

Bringing a claim
If you have a complaint of harassment or victimisation then it is recommended that you exhaust any grievance procedure set out in your employer's policy on harassment and sexual harassment (if any). This may involve making an informal complaint, followed by, if the situation has not been resolved, a formal complaint

If there is no grievance procedure, or such a procedure has failed to resolve the problem, then you can make a claim to the Equality Tribunal if your claim relates to harassment or victimisation on the abovementioned nine grounds. The Equality Tribunal investigates or mediates claims of unlawful discrimination under the equality legislation. A tribunal mediator will facilitate parties to mediate agreement which is legal and binding. Where parties object to mediation, a case will be heard by a tribunal equality officer, who will hear evidence from both parties before issuing a legally binding decision.

If a claim does not relate to one of the nine discriminatory grounds, then it is a health and safety issue

Time Limit
It should be noted that complaints under the Equality Acts must be brought within six months of the last act of discrimination. This time limit can be extended to twelve months where there is "reasonable cause". It is important to bear this time limit in mind if you are invoking an internal grievance procedure which may take a considerable amount of time to complete.

Remedies
Remedies will include one or more of the following:-

1. Compensation
2. An Order that somebody take a specified action.

Compensation
Claims pursuant to the Employment Equality Acts 1998-2004 are increasing annually. Relatively high levels of compensation are being awarded and more significantly, both the Equality Tribunal and the Labour Court have shown themselves to be quite prepared to make Orders that could be seen as a considerable intrusion on the ability of an employer to run their business.

Please note that this article is for information purposes only and does not constitute legal advice.

Rose Wall

Solicitor

Seeking Employment Law Advice

If you would like to set up a consultation with an Employment Law Solicitor please contact Malcomson Law by calling 01 8744422.

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