The recent decision of the Labour Court in the case of The Agricultural Trust v Brien, EDA2213, dealt with a case of alleged sexual harassment and the employer's response to same. SIgnificantly, the employer escaped liability, not because the Court found that there was no harassment, but because the employer had taken the necessary steps to prevent harassment from occurring and responded properly when a complaint was made. Our Adrian Twomey highlights the key elements of the decision to which employees and employers should pay attention.
The Agricultural Trust is a publisher whose titles include the Irish Farmers Journal and The Irish Field. Ms Brien was employed by that business as an Accounts Executive, having commenced employment in September 2016. She complained that:
a male colleague, identified in the decision only as "PK", told her that his mission was to "turn her straight";
PK subsequently ignored her at coffee breaks and refused to answer her questions at meetings;
when a group of employees went to a nightclub after a company summer party, PK began to dance very close to her and pushed his body against hers without her consent.
Ms Brien complained to the company about the incidents. It appears that PK was suspended whilst an investigation took place and that disciplinary action was subsequently taken against him. He then returned to work. Ms Brien left the office approximately 30 minutes after his return and went out on sick leave before resigning on 10 December 2018. The employer asked her to reconsider her resignation but she did not respond and soon commenced employment elsewhere. She brought a claim to the Workplace Relations Commission (WRC) under the Employment Equality Act 1998 (as amended). She was unhappy with the later decision of the WRC and appealed to the Labour Court.
It seems that it was accepted that at least some of PK's conduct constituted sexual harassment within the meaning of the 1998 Act. The Labour Court, however, focused on section 14A(2) of the Act, which provides that an employer will have a defence to a claim for sexual harassment if it took "such steps as are reasonably practicable" to prevent sexual harassment from occurring and, if such harassment does occur, to prevent the victim from being treated differently in the workplace and to reverse the effects of the harassment.
The language in the Act can be difficult to interpret. However, the Court helpfully explained the meaning of the legislation, stating that:
"A respondent may be able to demonstrate that it has fulfilled the requirements of [the legislation] where it has a comprehensive anti-harassment policy (including an appropriate investigation procedure) in place, has provided appropriate training to staff and, in particular, has trained managers in relation to accepting and investigating complaints of alleged harassment.
[The legislation also] requires a respondent to demonstrate that it has taken “reasonably practicable steps … to prevent the victim from being treated differently in the workplace … and, if and so far as any such treatment has occurred, to reverse its effects.”
This paragraph is understood to comprehend initiatives such as the provision of counselling to an employee who has experienced harassment on any of the nine grounds, a referral of the employee to an Employee Assistance Programme and the provision of refresher training on diversity and equality to all employees and managers, as appropriate."
Having interpreted the practical meaning of the legislation, the Court went on to apply it to the facts in the Brien case, stating:
"It is abundantly clear to the Court that the Respondent herein had a comprehensive Dignity at Work policy in place in respect of which all employees, including the Complainant and PK, received training....
It is also clear to the Court that the Respondent carried out a comprehensive investigation of the allegations of sexual harassment raised by the Complainant against PK with the result that some, but not all, elements of those allegations were upheld.... Also, it is common case that the Complainant was offered access to, and availed herself of, the Respondent[']s Employee Assistance Programme following the events of 26 July 2018."
Having also concluded that the Complainant was not victimised by the employer and that she resigned in order to seek employment elsewhere, the Court dismissed her appeal.
The key takeaway for employees is that individuals do not necessarily have valid claims against their employer simply because they have been sexually harassed. There must also have been some failing on the part of the employer in preventing or dealing with the problem.
From an employer's perspective, it is worth noting that a defence is available if:
1. an appropriate policy is in place;
2. employees have been trained on that policy;
3. relevant managers have been trained as to how to conduct investigations;
4. complaints are properly investigated; and
5. appropriate steps are taken to help victims (such as offering counselling).
The outcome highlights the importance of employers taking preventative steps before incidents of sexual harassment occur and of their taking remedial steps after any complaints are upheld by investigators. Those requiring advice or assistance in relation to such matters can contact our Adrian Twomey.