As the end of the year approaches, we take a look back at the publication of the latest Code of Practice on Sexual Harassment and Harassment to be developed by the Irish Human Rights and Equality Commission (“the IHREC”).

Sexual Harassment and Harassment Code of Practice 2022

Prior to the introduction of the most recent 2022 IHREC Code of Practice, the existing guidance was contained in the 2012 Code of Practice on Sexual Harassment and Harassment at Work.

The key legal principle under both codes remains that…“Employers are legally responsible for the sexual harassment and harassment of employees by co-employees, clients, customers or other business contacts of the employer. However, it is a defence for the employer to prove that s/he took reasonably practicable steps to prevent the harassment, to prevent the victim from being treated differently in the workplace or in the course of employment, and to reverse any effects of the harassment”

The latest Code of Practice also contains some further guidance that employers should consider as part of updating to their policy and procedures in the areas of equality and dignity and respect.

Harassment Policy – Co-operation and Commitment

The Code advises employers to ensure they develop and implement a comprehensive, effective and accessible policy on preventing harassment. Development of the policy should be completed in cooperation with employees to maximise its effectiveness and to achieve good levels of compliance.

In particular an updated policy should state:

• the organisation’s commitment to ensuring that the workplace is free from sexual harassment and harassment;
• that all employees have the right to be treated with dignity and respect;
• that complaints by employees will be treated with fairness and sensitivity and in as confidential a manner as possible; and
• that sexual harassment and harassment by employers, employees and non-employees such as clients, customers, students, and business contacts will not be tolerated and could lead to disciplinary action (in the case of employees) and other sanctions, for example the suspension of contracts or services, or exclusion from premises (in the case of non-employees).

Appointment of Senior Level Champion

The Code of Practice recommends the appointment of a ‘Senior Level Champion’ in appropriate organisations. The ‘champion’ should be outside the HR structure, an independent voice advocating for a diverse workplace culture free of harassment where all employees feel respected. It is a matter for each particular organisation to determine what is feasible given size and resources.

Complaints procedure

The Code of Practice places particular emphasis on ensuring that all organisations have an effective complaints’ procedure for dealing with allegations of harassment. It sets out core elements of the complaints’ procedure which should include a timely investigation with express time limits. There are detailed steps showing how organisations can carry out informal and formal complaints procedures together with how investigations can be concluded in accordance with the principles of fairness and natural justice.

Importance of policy implementation

To rely on the defence of taking all reasonably practicable steps to prevent harassment, employers must have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action along with accessible complaints procedures.

All measures taken to ensure effective implementation of policies and procedures will be taken into account by courts and the WRC. The message to employers in the Code of Practice is clear.  An organisation will not be able to rely on an excellent policy if it is not properly implemented.

Training

A commitment to training is a good way to demonstrate that policies are being put into practice. Organisations that train managers, supervisors and all staff on strategies to prevent harassment will be in a strong position to demonstrate that they have implemented their policies. Training can happen for staff at induction or through appropriate awareness-raising initiatives.

Such training should also aim to identify the factors which contribute to a working environment free of harassment and to familiarise participants with their responsibilities and problems they are likely to encounter. This is especially important for members of staff who will be primarily responsible for implementing the policy and processing complaints.

What happens if an organisation fails to implement the Code of Practice

While the latest Code is not legally binding, it is admissible in evidence in proceedings before the WRC, the Labour Court and the civil courts. Having an up-to-date policy on harassment and sexual harassment and harassment at work is therefore the first step in ensuring your organisation is in a position to defend any claims.

Even if the policies and procedures comply with the standards set out in the latest Code of Practice, your defence will only stand up if it has been communicated to all relevant employees and non-employees. It’s also vital to provide training to employees on their obligations and to ensure that policies are accessible and easy to understand.

If your organisation does need to defend a claim involving bullying and/or sexual harassment, the first thing an adjudication officer will look for is evidence that you took all reasonably practicable measures to ensure the workplace was free of bullying, harassment and/or sexual harassment.

The key questions your organisation will need to answer are:

–       Is there a relevant and up-to-date policy in place?

–       Has the complaint been handled through an appropriate complaints’ procedure?

–       Has the policy been implemented through regular training or other measures?

Need advice on updating your harassment policies and procedures?

If you haven’t updated your equality-related policies recently, now is the time to do so.

We can also provide specific training for your organisation to help you demonstrate that you have implemented your harassment prevention policy.

For more information, speak to one of our experts today on (01) 886 0350 or request a callback here.