Our employment team has noticed a recent increase in the number of queries regarding sexual harassment in the workplace. Two recent WRC decisions helpfully illustrate how employers should address such allegations and the lessons to be learned by employers.
The complainant alleged that she had been inappropriately touched by a colleague while working as a postal operative with An Post. She reported the incident but was subsequently informed that an investigation into her allegation was inconclusive. However she had not been interviewed for the purpose of the investigation and alleged that An Post did not follow the procedures set out in their employee handbook.
The complainant claimed that the investigation was unsatisfactory and that she was forced to continue to work with the man who sexually assaulted her and to listen to him telling everyone that she had lied and he had been proved innocent. The complainant moved buildings to try and get away from employees gossiping.
The Adjudication Officer (the AO) determined that in considering the claim the first obligation under the Employment Equality Act 1998-2015 was to consider if the respondent "took such steps as are reasonably practicable" to deal with the allegation of sexual harassment. He was guided by the principles set out in the statutory Code of Practice which recommends that "investigation of any complaint will be handled with fairness, sensitivity and due respect for the rights of both the complainant and alleged perpetrator. The investigation should be, and perceived as independent and objective: to this end it is essential that the principles of natural justice be adhered to."
Applying the above the AO felt that the investigation fell far short of the best practice guidelines set out in the Code. There were numerous deficiencies in both the initial investigation and a subsequent appeal and a lack of awareness of the process to follow when faced with an allegation of sexual harassment. Therefore the AO determined that the employer could not avail of the defence that it had taken such steps are as reasonably practicable. Given the complainant's statement and available CCTV footage showing physical proximity this was clearly a complaint that should have been taken seriously and investigated in accordance with the respondent's Dignity at Work, Anti Bullying and Harassment Policy. The AO awarded the Complainant the maximum possible award of 2 years remuneration to the claimant. It also directed An Post to ensure that all supervisory and management staff receive full training in their Dignity at Work Policy – Anti – Bullying policy.
In contrast, another recent decision shows how an employer can successfully defend a sexual harassment claim by following the guidelines set out in the Code of Practice.
The claimant alleged she was discriminated against on the grounds of gender and treated unlawfully by reason of sexual harassment. She worked night shifts writing and broadcasting news bulletins overnight. She often worked with an employee Mr X and received numerous text messages, WhatsApp messages and emails from him over 3 days the content of which she considered to be very inappropriate. She contacted her manager almost immediately after the harassment started and an investigation was conducted by the respondent which found that sexual harassment had occurred. However she was scared to return to work and went on sick leave and ultimately resigned her employment.
In contrast to the An Post case, the AO was satisfied that the respondent took such steps as were reasonably practicable to prevent the claimant from being sexually harassed. These measures included having a comprehensive policy and training in place which had been communicated to staff and which enabled her employer take swift and prompt action on receipt of the initial complaint. RTE also supported her by not requiring her to return to night shifts, provided access to an Employee Assistance Programme (EAP) and paying her sick leave during her absence. The AO also found that the claimant was not subject to any adverse treatment arising from her raising the complaint of discrimination. Accordingly, the claim failed.
These contrasting cases show the importance of having an up to date Dignity at Work policy that staff are aware of and trained in its contents. It also emphasises the need for an employer to react swiftly and promptly if such a complaint is received.