Wednesday, November 13, 2019
The Workplace Relations Commission recently handed down an illustrative decision on the subject of sexual harassment.
The employee in question was the subject of appalling harassment at the hands of one of her managers and, unsurprisingly, the WRC did not hesitate to rule that this was utterly unacceptable. The employee received a very high level of damages – €40,000.
Given the nature of the harassment that the employee was subjected to (repeated comments of a sexual nature, being called sexually offensive names and threatened with violence) it is not remotely surprising that the Adjudicator felt it was necessary to award the highest level of compensation available. From that perspective, the case does not contain anything particularly novel.
However, of interest to employers are the comments made by the Adjudicator on the subject of an employer’s obligation to take action in circumstances where an employee is being sexually harassed repeatedly.
A key finding in the case is that other managers were aware of the behaviour. On a number of occasions, managers were clearly in earshot when comments were made and evidence was before the Tribunal that as managers knew about the conduct, the employee “expected that he would have been stopped from sexually harassing her“.
The conduct lasted for a period of several months, beginning in November 2017. In April 2018 the employee decided to make a written complaint to the company’s HR department. Unfortunately for her, this exacerbated the situation as she was then the subject of additional harassment by other staff members who had become aware of the complaint.
The most interesting part of the judgement is the Adjudicator’s findings in relation to an employer’s obligation to take steps to deal with unacceptable conduct. In this case, the employee was the subject of ongoing appalling content for approximately 5 months, during which other members of management were clearly aware that she was being harassed.
One of the arguments the employer submitted was that the company could not be held liable for the actions of the manager in question – the legal concept of vicarious liability. The company also attempted to argue that it had anti–harassment and dignity at work policies in place and also that they had made genuine attempts to deal with the matter informally.
The company argued that once the employee had made a formal complaint, it was taken very seriously, investigated quickly and upheld. The perpetrator had been suspended and was transferred to a different division as part of a disciplinary sanction. Basically, the company attempted to argue that as soon as a formal complaint had been made, it had taken necessary steps.
However – the most important part of the judgement for present purposes – the Adjudicator did not agree that this was nearly enough.
In particular, the Adjudicator had no truck with the company’s argument that until a formal written complaint had been submitted, it was limited in the actions it could take. The Adjudicator noted that a number of members of management had been clearly aware of the sexual harassment. The Adjudicator also pointed to the fact that managers or other persons with supervisory or management functions in every employment have responsibility pursuant to law to ensure that employees are not sexually harassed in the workplace.
In other words, a great deal of emphasis was placed upon the importance of an employer taking a proactive role – that the company had “a very serious responsibility” to ensure that policies and procedures (including anti–harassment policies and procedures) are implemented and complied with by all staff.
The Adjudicator ultimately found that the company was vicariously liable for the actions (or inactions) of management, referring to “the inexplicable failure” of management to take appropriate action to prevent the employee from being harassed.
The case is a clear illustration of the fact that maintaining policies and procedures – while necessary in itself – is by no means some form of comprehensive insurance in circumstances where staff are the subject of harassment.
It’s very clear that there is an obligation on all managers to take remedial action if they become aware of sexual harassment in the workplace – and attempting to effectively hide behind procedures (and possibly the fact that an employee has not made a formal complaint) is going to cut no ice in the WRC.
The case was obviously an extremely distressing experience for the employee concerned – but it serves as a valuable lesson for employers.
It’s very clear that there is an unambiguous obligation on employers/managers to take prompt action if they become aware that employees are the subject of harassment or stress in the workplace, including sexual harassment. They don’t – and shouldn’t – have to wait for a formal complaint.