It must be noted that there is no specific tort of bullying and/or harassment in this country and thus claims have to made within existing causes of action, most of which were never designed to deal with this difficult area. One such cause of action is a harassment claim under Employment Equality legislation.
Sexual harassment and harassment on the non-gender grounds of discrimination are defined in Section 14A of the Employment Equality Acts 1998-2011 which provides as follows:-
“(a) In this section –
(i) References to harassment are to any form of unwanted conduct relating to any of the discriminatory grounds, and
(ii) References to sexual harassment are to any form of unwanted verbal, non verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, and degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.
Section 15 of the Act is an important section as it provides that an employer can be vicariously liable the harassment of its employees. However this section is limited in that it permits a defence where the employer can prove that they took such steps as were “reasonably practicable” to prevent harassment or to prevent an employee from being treated differently in the workplace or in the course of his/her employment.
The importance of the provisions of Section 15 of the Employment Equality Acts 1998-2011 and particularly what is required to establish that employers have taken “reasonably practicable” steps has been illustrated in two recent decisions from the Equality Tribunal. In the first case the Equality Tribunal recently found in favour of two lesbian employees who left their employment with Eddie Rockets Restaurant after just two weeks due to the harassment that they were subjected to by fellow employees arising out of their sexual orientation. Here the Equality Tribunal awarded the employees €15,000 each as compensation for the behaviour to which they had been subjected. In reaching the decision the Equality Officer found that Eddie Rockets had not done everything reasonably practicable to prevent the harassment of the employees and in particular was critical of them for not having communicated a Dignity at Work Policy to the employees in question. In light of the short service of the employees in question, the case offers a stark reminder to employers to have the appropriate policies in place from day one of employment.
This case can be compared with another recent decision of the Equality Tribunal in Allen Hogan v Vistamed Ltd (DEC-E2013-025),. Here it was held by the Equality Tribunal that the Respondent Company had done everything reasonably practicable to prevent the employee’s harassment and thus they were entitled to rely on the defence provided in Section 15 of the Employment Equality Acts 1998-2011. The background to this case is that Mr Hogan who is a Northern Irish Protestant claimed that he was verbally abused by a fellow employee because of his religious beliefs and race. The Equality Officer deemed that the comments which were made were inappropriate but also deemed that when the complaint regarding the comments was made to management, they conducted an investigation in line with their procedures into the matter and appropriate sanctions were put in place.
These decisions emphasise the importance for employers of having an appropriate and comprehensive Dignity at Work/Bullying and/or Harassment Policy in place and ensuring that all employees are made aware of the provisions of any such policy and that any breach of same is investigated appropriately and that reasonable action is taken on foot of any findings. It is readily apparent that a failure on an employers’ part to adhere to the foregoing can result in sizeable awards being made.