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Employers, What if there is a Harvey Weinstein in your company?

Whether you are an employer or an employee, male or female, sexual harassment should not be acceptable in your workplace. The Harvey Weinstein case should put employers on alert of this risk and re-assess how it addresses sexual harassment in the workplace. Employers should consider whether there is enough being done to prevent or minimise this conduct, encourage
complaints from alleged victims while at the same time be able to protect those who are wrongly/maliciously accused of sexual harassment. This is not an easy task but one that must be done to protect the health and safety of your employees, reduce the level of staff turnover and to minimise the risk of liability.

The first step is to review (or put in place) the anti-harassment policy. The policy should contain a procedure where the accusation is the HR Manager, an executive director or the CEO. This will not only assist the employee feeling comfortable being able to make the complaint but it will also assist the employer in knowing what to do and how to investigate the matter in a fair manner to all involved. For many companies, this separate procedure where the accused is one of
these key positions may involve a third party contact, who will be able to carry out the investigation. A contract may be required in advance to agree on fees to provide this service if and when required.

Ideally, employees input on the policy should be sought, on a unanimous basis is preferable. This should ensure that the policy covers every type of situation including when is a subordinate and a female. The policy should provide for a confidential investigation that is carried out without delay. The parties should be separated for the period of the investigation under the guise of business reasons to contain the confidentiality and the status quo. It must be remembered that the accused also has
Constitutional rights and be allowed to question his/her complainant/victim even it is via the investigator. If the alleged victim is unable to be in the same room as the accused, which should be expected, the policy should set out that technology, such as video conference call or Skype, will be used to allow the accused to question the alleged victim if he/she wishes to do so. Reference should also be made to the Employment Equality Act 1998 (Code of Practice)(Harassment) Order (SI 208/2012) (the “Code of Practice”) when reviewing the policy.

The 2016 Labour Court Decision of A Store v A worker EDA163 highlighted the absolute necessity for employers to do more than simply having an anti-harassment policy in place. In the aforementioned case, an employee claimed that she had been sexually harassed by male coworkers between February 2010 and November 2012. When she notified her manager of the matter, he advised her that this type of conversation was “Ok, as they were just young lads”. She was ultimately awarded €15,000 by the Labour Court despite the employer having an anti-harassment policy which was displayed in a prominent position in the workplace. The case
emphasised the importance of knowing the difference between harmless fun and sexual harassment. Therefore, the second step that employers should focus on is to remind the staff and consultants of what can amount to sexual harassment and how the intent or motive of the accused is irrelevant.

Sexual harassment is defined under the Employment Equality Acts as “unwanted verbal, nonverbal or physical conduct of a sexual nature” 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”. Employees, including managers and directors, should be informed to be careful in relation to “banter” and/or “jokes” and to think twice before making them. They need to assess whether
such a comment could be causing the listener offence and create an offensive working environment for that person. Employees, including managers and directors, should also be reminded of their obligation under Safety, Health and Welfare at Work Acts, to protect his/her own health and safety and in this regard, should avoid encouraging any such conduct and utilise the anti-harassment policy without delay in the event that this occurs.

Caution with False Accusations
Unfortunately, there are occasions that an employee, who knows he/she is not going to pass their probationary period or is going to be disciplined, will claim that he/she was sexually harassed. This is usually done in an attempt to avoid the disciplinary sanction or to get an exit package. Employers need to be very careful if/when there is a suspicion that the allegation is false on two fronts:
1. it may not be false on this occasion, and
2. if it is false and the employer has not investigated the matter in a fair, efficient and confidential manner, then the accused could have a potential claim.
3. Employers should address every claim as a genuine claim and if the procedure for dealing with such matters is followed without delay and in a confidential manner then such false allegations will be dealt with pretty swiftly limiting any reputational damage. The policy should allow for the initiation of the disciplinary process in the event of a false and malicious allegation.

However, the policy should ensure that false accusations do not prevent genuine allegations from not being made. Also, it should be remembered that one false allegation does not mean that the next time the same person is accused or makes an accusation that it is not true.

An employer who does not reassess its policy and practice in respect of sexual harassment should be reminded that it could be held liable to pay compensation of up to two years’ remuneration or €40,000, whichever is greater, together with an order to take specific action, under the Employment Equality Acts if the claim is taken to the Workplace Relations Commission (“WRC”), or be subject to an unlimited award if the claim is taken directly to the Circuit Court under this Act. The employee may take such a claim without resigning and it will up to the employer to ensure that such victim is not victimised for taking such a claim.
The employee who is subject to sexual harassment also has the option of resigning and taking a constructive dismissal claim under the Employment Equality Act or the Unfair Dismissal Act. Alternatively, the employee could take a claim to the courts for breach of contract and duty of care.

Consideration should also be given to potential adverse publicity and high staff turnover.

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