What is harassment?
By law, harassment at work is any unwanted behaviour or actions that:
- Violate your dignity – that is, the purpose or effect of the behaviour is to make you feel degraded, and
- Are intimidating, hostile, humiliating or offensive to you.
Harassment under Irish equality law, is unwanted behaviour related to one or more of the ‘protected grounds’ listed below.
The unwanted actions may either deliberately aim to violate your dignity or unintentionally have that effect.
Many kinds of behaviour could be defined as harassment, such as spoken words, gestures, and displaying or sharing words, pictures or other material.
Harassment could be one single incident or a pattern of behaviour.
It does not have to be directed at one specific person for that person to feel they have experienced harassment.
The law on harassment and sexual harassment in the workplace is set out in the Employment Equality Acts 1998-2015 (EEA).
What are the nine protected grounds for harassment?
The law protects you if you experience harassment based on one or more of the characteristics listed below. For example, it would be against the law for an employer to mock, bully or otherwise harass you because of your age, sexual orientation or disability.
The nine protected grounds are:
- Gender (e.g. male, female, transgender. Also covers persons who are treated less favourably due to pregnancy or taking maternity leave)
- Civil status (single, married, separated, divorced, widowed or in a civil partnership)
- Family status (e.g. pregnant, parent or carer)
- Sexual orientation (e.g. heterosexual, homosexual or bisexual)
- Age (for people aged 18 or over)
- Religious belief (including religious background and those who have no religious beliefs)
- Membership of the Traveller community
- Race (colour, nationality, ethnic or national origin)
- Disability (intellectual, mental or physical)
The Employment Equality Acts only cover harassment that is linked to one or more of these protected grounds.
However, sexual harassment need not be linked to any of the protected grounds (see below).
Types of discrimination
Harassment is a form of discrimination. Irish law sets our four types of discrimination based on the protected grounds listed above. The most common types are direct and indirect.
- Direct discrimination in the form of harassment can occur when you are mocked or bullied or otherwise harassed on the basis of one or more of the protected grounds.. For example, where you are mocked because you have a disability.
- Indirect discrimination in the form of harassment can happen when a seemingly neutral rule, statement or action that applies to all employees results in you feeling humiliated or embarassed , even though it was not directed at you personally. For example, if you are not Irish and a manager accuses all non-Irish workers of being lazy.
- Discrimination by imputation in the form of harassment happens when someone treats you badly because they think you have a protected ground, even though you do not. For example, if you are bullied because it is mistakenly assumed you are gay.
- Discrimination by association in the form of harassment is when you are treated badly at work because you have a connection to someone with a protected ground, even if you do not have that ground youself. For example, where a co-worker makes offensive comments to you because you are married to a member of the Traveller community.
What is sexual harassment?
Sexual harassment is any form of unwanted words or physical actions of a sexual nature which deliberately or unintentionally violate your dignity and create an intimidating, humiliating or offensive environment for you.
- Conduct of a sexual nature can take many different forms, ranging from suggestive messages to unwanted physical contact or sexual advances.
- It need not involve physical contact, nor does it need to take place many times. A single act is sufficient to be considered as sexual harassment.
- The conduct must be unwanted. A complainant themselves will know whether the conduct was unwanted.
- The language or actions used do not need to be explicitly sexual as sexual harassment could be a result of a hostile environment created for an employee.
Example: When sexual harassment is not obviously sexual
A woman working in a hotel complained about a male co-worker who treated her in a sexist manner. She said she was called offensive terms, laughed at and excluded from conversations. The Labour Court decided that this treatment was sexual harassment because it was a direct result of the man’s negative views towards women.
It decided that the employer was responsible for the sexual harassment even though none of the actions could be described as sexual.
Who is covered by the Employment Equality Acts?
The law protects all public and private employees, whether they are full time, part time, permanent or temporary, who work under a contract of employment, or through an agency, or at a training centre. It also covers people who provide personal services in someone else’s home, such as care workers or nannies. Furthermore, the law on harassment also applies to employment agencies and vocational training. However, it does not cover volunteers.
Harassment may be carried out by:
- Your employer
- Managers
- Co-workers
- Clients
- Customers and service users
- Other business contacts at your workplace, such as delivery workers, cleaners, maintenance workers, students, volunteers or professional contractors
What about work situations outside the workplace?
The law against harassment and sexual harassment in employment also applies to work-related activities outside the workplace, such as conferences, training events, office parties and social media platforms.
When can harassment and/or sexual harassment arise?
- Where a protected ground exists at the time of making the complaint
- Where a person is experiencing harassment or sexual harassment on the basis of one of the nine protected grounds at the time of making the complaint.
- Where a protected ground used to exist but no longer exists
- Harassment and/or sexual harassment can also arise where a protected ground used to exist but no longer does. For example, where a person has returned from maternity leave and is harassed because they had previously been on maternity leave.
- Where a ground may exist in the future
- Harassment and/or sexual harassment can also arise where a person does not fall under a protected ground, but may do so in the future. For example, where a person who is not pregnant is harassed or sexually harassed because they may become pregnant in the future.
Example: A childminder won her complaint of harassment and sexual harassment
A Spanish childminder living with an Irish family made a complaint about sexual advances and inappropriate behaviour by the father of the child she was employed to care for. She also complained about being expected to do housework when the family was away on holiday (during which time the father also texted her, asking for photos of a sexual nature). The Workplace Relations Commission (“WRC”) decided that the childminder had suffered harassment, sexual harassment and discrimination. The WRC instructed the employer to pay the woman €9,100 as compensation.
Who can I complain against?
If you experience both harassment and sexual harassment, you can make separate complaints about each one.
You can complain against:
- Your employer (the person or organisation who you hold a contract of employment with).
They will be known as the ‘respondent’ in your case. You will be known as the “complainant”.
The employer may be held legally responsible for the workplace harassment you are complaining about, even though they did not personally carry it out. This is called ‘vicarious liability’. It applies where an employer has some control over what happens at the workplace, even if they do not directly employ the person who harassed you.
In cases where your contract of employment names a company as your employer, you may need to complain against the company and also against the person who personally harassed you. You can check the correct name of the company and its owners at the website of the Companies Registration Office.
Example: School was found responsible for sexual harassment by students
A school was ordered to pay compensation to a teacher who had been sexually harassed by two students. The WRC decided that the school was responsible for actions that took place on its premises – and that it had failed to take steps to prevent the harassment from occurring or reduce the extent of it.
Do I need to give my employer a chance to fix the problem before I make a formal complaint?
If possible, you should tell your employer about any harassment or sexual harassment that you are experiencing. Ideally, you should go through the company complaints procedure before making a complaint to the Workplace Relations Commission (WRC) or the Circuit Court.
However, you are not legally required to complain to your employer. If it is not possible or reasonable do so, or if it would take too long, you will need to explain this to the WRC or court when you start your case with them.
NB You must lodge a complaint with the WRC within 6 months of the harassment or sexual harassment regardless of any internal complaints procedure.
Where do I make a formal complaint about harassment or sexual harassment at work?
You can complain to the Workplace Relations Commission (WRC), under the Employment Equality Acts 1998-2015.
If you face harassment or sexual harassment because of your gender, you can choose to start a case in the Circuit Court instead of the WRC.
WRC hearings may be held at a location convenient to you, although most take place at Lansdowne House, Lansdowne Road, Dublin 4. Hearings are kept as informal as possible, and you do not need a lawyer to represent you, although you may choose to instruct one.
Who decides the case?
The WRC appoints an Adjudication Officer to chair the hearing of your case and decide whether harassment or sexual harassment has occurred.
What evidence do I need?
You must show evidence of the words used or action taken against you. The evidence can be:
- Written – such as letters, emails or texts sent to you, or notes kept by you or a witness at the time of the incident
- Spoken – recordings made at the time, or testimony from a witness who saw what happened and is willing to give evidence about it
- Photographic – such as CCTV footage or photos or videos taken on a phone
When you make notes, be sure to add the date and time of any incident, as well as the names of any person who was present at the time.
Do I need a comparator?
No. In cases of harassment or sexual harassment under the Employment Equality Acts, you do not need to compare yourself with anyone. In other words, you do not need to show that the treatment you received was worse than another employee would have received in a similar situation. This is different from other types of discrimination. You simply need to show that what happened to you was harassment related to a protected ground or sexual harassment.
Can employers defend themselves against complaints of harassment in the workplace?
Yes. An employer will not be found responsible for harassment if they can:
- Show they have a clear policy on how to stop or prevent harassment or sexual harassment; and
- Prove that they took reasonable and practical steps to follow that policy when trying to deal with the complaint
Example: Complainants need to engage with the employer’s complaints procedure
A British factory worker complained of getting taunts and jeers about his religion and nationality from co-workers. The employer asked for details of the complaint in writing and HR manager engaged in a dispute resolution process and took a number of steps to resolve the complaint. The employee was not satified and made a number of disparaging comments against his employer and as a result was dismissed. The employee lodged a complaint of harassment with the WRC However, the WRC found in favour of the employer, on the basis that the employer took all reasonable steps to resolve the complaint.
What are the time limits for complaining to the WRC or Circuit Court?
Complaints of harassment and/or sexual harassment under the EEA must be made within 6 months of the last date of harassment. This means that:
- If the harassment or sexual harassment has ended, you must make your complaint within six months of when it last took place.
- If the harassment or sexual harassment is still continuing, you should complain without delay.
- NB: If you are going through your employer’s complaints procedure and it is likely to take more than six months, you should explain this to the WRC and submit your complaint to the WRC within the 6 months without waiting for the conclusion of the internal procedure.
Can I appeal if I am not satisfied with the decision of the WRC?
If either you or your employer are unhappy with the decision of the WRC, the case can be appealed to the Labour Court. The Labour Court will reconsider the matter by way of a fresh hearing. You must:
- Make your appeal within 42 days of the date of the decision of the Adjudication Officer
- Write to the Labour Court within three weeks of starting the appeal, stating:
- An outline of the facts about what happened
- The points of disagreement
- The legal issues and principles involved, and why they mean you should win your case
- Allow a further three weeks for your employer to respond
The Labour Court will decide on the case in a full formal hearing.
You can also appeal a decision of the Circuit Court. You should do so within 10 days of its original decision. For more information, see the Courts Service website.
What outcome can I expect if I win my case?
The outcome will vary from case to case. The WRC or Labour Court may:
- Award compensation of up to a maximum of €40,000 or 2 years’ pay (whichever is greater)
- Order the employer to take measures to prevent harassment or sexual harassment going forward, including by way of implementing appropriate training or policies.
Where can I find more information?
IHREC’s Code of Practice on Harassment and Sexual Harassment gives practical guidance on:
- What is meant by sexual harassment and harassment at work
- How to prevent it
- How employers should deal with the problem and stop it happening again – with detailed guidance on policies and procedures
The Code of Practice is not a statement of law. However, you can use it in making a case to the WRC or the courts, and the courts can use it to show how the law should be interpreted.