In light of recent allegations involving the former artistic director of the Gate Theatre and a worldwide examination of inappropriate behaviour, sexual harassment and abuse of power by executives within the entertainment world, sexual harassment in the workplace is once again center stage for Irish employers.
So what exactly is sexual harassment?
It is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. It is defined as conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
As the Board and management of the Gate Theatre discovered – much to their public embarrassment – an employer is liable for anything that is done by an employee in the course of their employment and have a duty to protect them from any kind of inappropriate or abusive behaviour in the workplace.
What can Irish employers learn from case law as the Christmas party season approaches?
In a 2013 ruling, Equality Officer, Stephen Bonnlander, ordered an unidentified multinational retail chain to pay €29, 756 to a young woman who had been subjected to ongoing physical and verbal sexual harassment. The young woman started work with the retail chain as a teenager in June 2008 and thereafter was subjected to abusive and inappropriate behaviour from two of her supervisors at work, one of whom attempted to push her legs apart at a staff party in January 2010. The young woman eventually resigned in October 2010 after a prolonged period of absence from work. She described feeling ‘violated, sick, stressed and scared’ after the incident at the staff party. The Equality Officer found that even though the company had investigated the allegations of sexual harassment properly, they had not gone far enough to protect the young woman when the perpetrator was not moved to another store.
In an earlier ruling (DEC-E2007-014), the Equality Officer found that an employee had been sexually harassed at a company Christmas party and ordered the company to pay €12,000 to the complainant. It appeared to the Equality Officer “that the entire employment process operated by the respondent is unstructured and ad-hoc”. In other words, this employer contributed to the negative finding against them. Correspondingly, the Equality Officer also ordered the employer to:
- Develop a code of Practice on Harassment on all of the nine discriminatory grounds covered by the Employment Equality Acts.
- Provide a copy of this Code to all existing and new staff (on arrival) and ensure that staff are fully acquainted with its contents. In addition, copies of the Code, or a brief synopsis of it, should be displayed in prominent positions in areas of the hotel frequented by staff.
- Provide appropriate training to all staff who have staff management functions on the policy and regularly review this policy in light of developments/best practice in the area.
All employers would do well to take serious note of those 3 orders. They provide a very clear benchmark against which an employer can proactively assess their potential exposure.
At Christmas parties people’s inhibitions are down. They are often in a celebratory mood and barriers between management and staff can be blurred. These are arguably good things in a human sense – but they present a minefield to employers. A core reason for this is because official Christmas parties are considered an extension of the work environment – even if they take place in a completely different location.
So in addition to the above orders of the Equality Officer, companies should also go further and:
- Require employees to return a signed acknowledgement of having received, read and understood the company’s policies on harassment, sexual harassment and bullying. The policies should state that they pertain to not just the workplace but also to work-related social events held elsewhere.
- Provide Dignity at Work Training to all employees.
- Train managers on how to deal with bad behaviour on the part of employees at Christmas parties and other work-related social events. Indeed it would be prudent for some managers to refrain from drinking alcohol so that they are well positioned to react should some incident occur on the night.
An employer can also limit their exposure if they make clear, in advance of the party, what their party policy is. And it would be a good idea to do this in a formal memo issued to all staff. The memo could explicitly preclude activities such as:
- Sexual harassment
- Posting of photos on social media that may bring the company into disrepute or infringe on employees’ right to privacy
More generally, employers need to make clear that inappropriate behaviour at Christmas parties will be dealt with in the same way as it would be dealt with if it occurred during regular work time at the office. You may feel that this smacks of the Granny state – and that it’s ridiculous that adults cannot take responsibility for their own actions – but the law is clear on this. Employers are potentially liable for what happens at the Christmas party – though it should be pointed out that exposure only arises if someone actually makes a complaint.
So what should an employer do if a complaint is made following the party? The employer needs to investigate the complaint promptly – and in conformance with the company’s dignity at work and/or disciplinary procedures.
Your responsibilities as an employer are complex. To get expert guidance in the area of dealing with sexual harassment allegations in your workplace, call Mary Cullen, Patrick Foley or Liam Barton on 056 770 1060 or email firstname.lastname@example.org.