New Code of Practice on Sexual Harassment and Harassment at Work
The Irish Human Rights and Equality Commission (“IHREC”) has published a new Code of Practice on Sexual Harassment and Harassment at Work (the “Code”), one of two new codes published on 9 March 2022 to mark the week of International Women’s Day 2022.
Overview:
- The Code provides a helpful summary of the key provisions of the Employment Equality Acts 1998 – 2021 insofar as they relate to workplace harassment.
- It reiterates existing law and best practice regarding employer obligations to prevent harassment and sexual harassment and to effectively deal with complaints of such treatment, if and when they arise.
- In doing so, the Code highlights the necessity for employers not only to put in place adequate policies and procedures, but also to ensure that they are brought to the attention of all employees; that they are effectively implemented; and that managers, supervisors and all staff members are provided with appropriate training.
Complaints procedure: Many employer policies will already comply with most elements of the complaints procedure recommended in the Code, but there are a number of noteworthy recommendations:
- Senior level ‘champion’: The Code introduces a new concept of a ‘champion’. It suggests that a senior individual (or individuals) in an organisation be designated as a ‘champion’, someone independent to advocate for a diverse workplace culture free from harassment and sexual harassment. However, there is recognition in the Code that this will not be practicable for all organisations depending on their size and resources.
- Statutory rights: The Code recommends that internal procedures should make it clear that employees who use the complaints procedure will still be entitled to make a statutory complaint under the Employment Equality Acts and that they specify the statutory time limits and clearly state that statutory time limits continue to run during internal investigations and pending the outcome of same.
- Companion: The Code recommends that the complainant and alleged perpetrator should each be entitled to be accompanied and/or represented by a friend or colleague, a representative, or trade union representative.
- Appeals process: The Code recommends that the procedure should provide for a right of appeal of the initial decision, to be made within a specified timeframe.
- Investigators: The Code recommends that at least two people should investigate a complaint where possible and that an investigation team should, as far as practicable, have gender balance and seek to ensure diversity.
Takeaway for Employers: Employers are legally responsible for harassment and sexual harassment suffered by employees in the course of their employment. However, it is a defence for an employer to prove that it took reasonably practicable steps to prevent the harassment, to address any complaints of harassment, and to reverse the effects of the harassment. In order to rely on this defence, employers must be able to demonstrate that they have comprehensive and effective policies and complaints procedures in place, and that such policies and procedures are readily accessible to employees.
While the Code is not itself legally binding, it is admissible in evidence in legal proceedings and is likely to be referred to in the context of complaints involving harassment or sexual harassment. Employers should periodically review their internal policies and procedures to ensure that they remain up to date and in line with best practice. Employers should now also ensure that their policies and procedures are compliant with the Code, which is likely to be used as a benchmark against which employer policies will be compared in the context of legal proceedings.
Link: https://www.ihrec.ie/app/uploads/2022/03/Codes-of-Practice-Sexual-Harassment-FA_Digital.pdf
Authors – Jenny Wakely and Anne O’Connell
28th March 2022
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
www.aocsolicitors.ie
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