Workplace Harassment is evidently unacceptable, but what legal right can an employee avail of if it has occurred ?.
This area of law in an employment context is dealt with by the Equality Act 2004.
Equality Act 2004
Under S.14(A) of the above act states the following:
An employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
or
(b) without prejudice to the generality of paragraph (a)—
(i) such harassment has occurred, and
(ii) either—
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
Burden of Proof – Workplace Harassment Cases
The burden of proof is initially on the complaint to show what is termed a prima facie case.
This stems from S. 85A of the Equality Act which states:
Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.
There must be facts of significant significance, which is how it is described, from which discrimination can be inferred. If the complainant proves this, the burden and focus shifts to the employer to prove no unequal treatment or harassment arose. This can be an onerous task for an employer.
Defence to Workplace Harassment
It is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
(a) to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
The following questions applied to the facts will be assessed should a case arise.
So, did the employer take steps that were reasonably practicable to prevent the harassment ?.
This suggests that the focus will firstly be on what the employer did before the harassment took place.
The second component is then what did the employer do after the harassment occurred to reverse its effect ?.
It will examined if the employer has an anti-harassment or dignity at work policy in place ?.
Does the employer have handbooks on bullying / harassment etc. ?.
Did the employer give this to the employee prior to the harassment taking place ?.
Did the employer ever give staff information sessions on harassment?.
Was the harassment policy communicated to the employee ?.
What specific steps did the employer take then after the harassment took place to reverse it’s effect will be examined next ?.
What measures did the employer put in place to stop the harassment reoccurring ?.
Disclaimer – Workplace Harassment Law Article
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.