Workplace banter or sexual harassment – what’s the difference?

In the wake of numerous claims of sexual harassment, Hollywood heavyweight, Harvey Weinstein has resigned and most recently Oscar winning actor, Kevin Spacey has become the latest movie mogul to face such allegations. With #MeToo now trending globally, the world's population are registering their own experience of sexual harassment in the workplace – which, in today's digital world, is not confined simply to the office.  In circumstances where Irish law defines sexual harassment as "unwanted verbal, non-verbal or physical conduct of a sexual nature", the current spotlight is firmly focused on what is and isn't appropriate in the workplace. Exactly when does "harmless" workplace banter fall foul of this definition? At what point does that "office romance" or "horseplay" stray into the kind of territory that warrants action by Irish employers and presents a media nightmare for businesses with both significant reputational and economic consequences?

The cultural tide

This year an Uber employee posted allegations of sexual harassment within the Uber workplace on her blog. The ensuing investigation resulted in 20 Uber employees being dismissed for inappropriate conduct including sexual harassment and, significantly from an employer's perspective, management ignoring reports of sexual harassment. Turning a blind eye or chalking such behaviour down to "a little bit of fun" or harmless banter simply won't cut it.

What the legislation says

The definition of sexual harassment within the Employment Equality Acts 1998-2015 (the "Acts") is exceptionally broad. Section 14(7)(A) of the Acts defines sexual harassment as:

"any form of unwanted verbal, non-verbal 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".

The Employment Equality Act 1998 (Code of Practice)(Harassment) Order (SI 208/2012) provides further clarity on the breadth of sexual harassment:

"The essential characteristic of sexual harassment is that it is unwanted by the recipient, that is for each individual to determine what behaviour is acceptable to them and what they regard as offensive".

Accordingly, provided the conduct in question occurs in the workplace (or in the course of the complainant's employment) and it is (i) unwanted; (2) persistent; (3) has the effect of violating a person's dignity or creating an offensive environment, it's caught by the statutory definition of sexual harassment.

However, section 14(A)(2) of the Acts provides a defence to employers where they can show that "reasonably practicable" steps were taken to prevent the sexual harassment of the employee in question or, where such harassment has occurred, that it took action to reverse its effect.

What the Courts say

A key issue in assessing whether conduct amounts to sexual harassment is to consider whether it was wanted or not. On this basis, a distinction can be made between "friendly behaviour", which is welcome and mutual versus conduct that is unwelcome and makes the recipient feel uncomfortable. The 2016 Labour Court case of A store v A worker EDA163, which resulted in an award of €15,000 even though the employer had an anti-harassment policy in place provides a useful case study of the courts' approach to sexual harassment claims in Ireland.

What happened?

Briefly, the facts of this case concerned a female sales assistant who alleged she had been sexually harassed by a male co-worker, despite telling him that she was not interested in any form of relationship with him.

On informing her manager of the offensive conduct, the complainant gave evidence that she was advised that the type of conversation complained of was "ok as they [the male co-workers] were just young lads".

So was it sexual harassment or harmless banter?

The key feature of this behaviour, which placed it squarely in the "sexual harassment" side of the "banter" fence, was that it was unwanted and unwelcome. The complainant gave evidence that she had approached the co-worker on several occasions and asked him to desist to no avail.

The Court ruled that the complainant was sexually harassed. The Court noted that "most people of normal sensitivity or fortitude" would likely find that conversation of a "sexually explicit nature" creates an offensive working environment.

Did the employer have a defence?

The Court considered whether the employer could avail of the statutory defence that it had taken reasonably practicable steps to prevent the sexual harassment occurring. Here the Court cited A Hotel v A Worker EDA0915 which held:

"An employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment…"

The Court concluded that the employer had not taken reasonably practicable steps to prevent the sexual harassment of the complainant:

• The policy was not properly understood by the manager responsible for its implementation;
• The policy was only available in English, which was not the native tongue of the perpetrators; and
• While the employer had an anti-harassment policy displayed in the staff area, the policy was not "properly or adequately applied in practice".

So what is "reasonable"? What should employers be doing?

Case law has found that an employer's duty of care requires the employer to show that it took reasonably practicable steps to prevent the occurrence of sexual harassment, not just to deal with such harassment if it occurs. Having a comprehensive anti-harassment policy is an essential first step.

Recent decisions have demonstrated that the lack of an anti-harassment policy can be fatal to an employer's defence even where an investigation into allegations of sexual harassment was undertaken. The 2017 Labour Court decision of Catlan Trading Ltd v McGuinnes ADE/16/78, re-emphasised the importance of having a suitable policy in place even in circumstances where the alleged sexual harassment is not brought to the employer's attention. Here the Labour Court relied on the Circuit Court decision of Atkinson v Carty [2005] ELR 1 which held:

"The failure of the Defendants to have in place adequate procedures renders them liable and by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity from same simply because the Plaintiff failed to make a complaint".

However, it is not enough to have a policy sitting on the office bookshelf that can be dusted off and produced by way of a defence to an employee's claims of sexual harassment. A vital second step is that such a policy is well-known and effectively implemented. Employers should ensure that the policy is easily accessible, regularly reviewed and prominently displayed.

While prevention of sexual harassment is critical, an employer's response to such allegations is crucial. The courts have emphasised the need to ensure management are trained to both investigate incidents of harassment promptly and confidentially, and to recognise its manifestations. It is essential that a person with appropriate seniority and a clear understanding of an employer's statutory obligations conduct the investigation. In Ms C v A Multi-National Grocery retailer E2015-079, the Tribunal re-iterated that "employers will not be able to rely on an excellent policy if it has not been effectively implemented".

A prudent employer should:

1. Put in place training on the content and purpose of its anti-harassment policy - not just for management level staff, but for all employees. An employer's investment in its staff's awareness and understanding of what is and isn’t acceptable conduct in the workplace will be a valuable aid to demonstrating a sincere effort to prevent the occurrence of sexual harassment in the workplace. Considerations of cost to the employer, from both a financial and time perspective, can be weighed alongside the significant adverse impact that allegations of harassment have resulted in from the standpoint of Uber and Miramax. It is also worthwhile noting that recent decisions have resulted in substantial awards in the region of 12-18 months remuneration.

2. Have an Employee Assistance Programme in place to ensure employees have access to confidential and professional support.

3. With the festive season approaching, remind staff that the anti-harassment extends to cover social events!

For more information please contact Ailbhe Dennehy, Senior Associate, and Karen Killalea, Partner – A&L Goodbody Employment Practice Group.

Date Published: 15 November 2017