The recent appalling revelations in the worlds of cinema and theatre are ongoing and more incidents of sexual harassment in the workplace are coming to light every day. The question arises as to how sexual harassment is tackled under Irish Law. Not surprisingly, it is treated as one of the most abhorrent types of harassment in the workplace, and the relevant piece of legislation to consider is the Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2012. To quote the foreword of the Code, sexual harassment pollutes the working environment and it is recognised that it has a devastating effect on the health, confidence, morale and performance of those affected by it. In my experience, the very severe stress and anxiety caused by sexual harassment results in those who are subjected to such appalling behaviour having to take sick leave. Very often those sexual harassed will feel they have no option but to get work elsewhere. Sexual Harassment itself not only causes damage to the victim, but it can also result in short and long term damage to their employment prospects should they be forced to forego promotion or to change jobs.
While all sympathy must rest with the sexually harassed employee, it also has negative consequences for the employer too. An employer may invest huge time, energy and resources in training employee A, but if employee B sexually harasses employee A, then the employer will suffer real loss should employee A go out on sick leave or resign and take up work in a safer work environment. For obvious reasons, sexual harassment can also impact on the economic efficiency of the company because productivity must be adversely affected if you are forced to work in a climate where your integrity is just not respected.
There are specific groups who are particularly vulnerable to harassment and it is accepted that there is a link between the risk of sexual harassment and the perceived vulnerability of the employee. This is precisely why the casting couch is still in existence; if an actor is sexually harassed by a predator director or producer, will that actor ever work again in the industry? A rhetorical question of course.
The 2012 Code of Practice obliges every employer to put in place a policy prohibiting bullying and harassment in the workplace, and it is commonly referred to as a Dignity at Work Policy. In that policy, the types of behaviour that are outlawed are set out and it will always include clear reference to the fact that sexual harassment must never be tolerated in the workplace. Also under the 2012 Code, complaints can not only be made to the Workplace Relations Commission but the employee can bypass the WRC and refer the complaint directly to the Circuit Court. Also, to dismiss an employee for making a complaint of sexual harassment is a criminal offence.
We must all be mindful that the victim of sexual harassment in the workplace should be afforded all protections under Irish Law. I am of the view that the victim of sexual harassment in the workplace will have the benefit of the protections afforded under the whistleblowing legislation, the Protected Disclosures Act, 2014. The 2014 Act specifically identifies one type of wrongdoing where the health or safety of any individual has been, is being, or is likely to be endangered; and no one can deny that the health of a sexually harassed employee is likely to be severely endangered. That being the case, the victim can make a protected disclosure and the 2014 Act confirms that the employee cannot be penalised for making that protected disclosure. Also, if it is the employer who is the one guilty of sexual harassment and decides to fire the employee, the employee may be compensated for up to 5 years loss of earnings. Under the Unfair Dismissals Acts the compensation that can be awarded is capped at 2 years, which shows the importance given to protected disclosures by employees.
Sexual Harassment in the workplace is simply unacceptable and we must believe that the recent revelations will be the beginning of the end of this reprehensible behaviour.