Harassment is any form of unwanted conduct related to any of the discriminatory grounds. Sexual harassment is any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature. The test of whether conduct amounts to harassment is a subjective one. If the conduct has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment, then it is considered harassment for which the employer is responsible. Employers must take all reasonable steps to ensure a workplace free from harassment and sexual harassment either by preventative or reactive measures. Employers are vicariously liable for harassment carried out by their employees in the course of their employment, whether the employer knew about the actions complained of or not. The only defense is for an employer to show that it took such steps as were reasonably practicable to prevent such actions. In that regard, Codes of Practice exist to guide employers on what measures or procedures to establish for the prevention of physical and verbal bullying and harassment in the workplace. An employer will be liable for harassment by its employees, clients, customers or other business contacts, if the employer does not take reasonable steps to prevent it.
Under Section 2 of the Health, Safety and Welfare at Work Act 2005, employers have a duty to manage and conduct work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behavior likely to put the safety, health and welfare of an employee at risk. A victim of sexual harassment has a menu of three recourses:
i. The victim may bring a claim to the Equality Tribunal or Circuit Court under Employment Equality Acts. Under these Acts, employer can be vicariously held responsible for harassment committed by employees. If a complaint is made to the Equality Tribunal, the victim may be awarded compensation of two years’ salary (104 weeks of salary) or £10,000 if the complainant is not in receipt of remuneration. The victim can also make a complaint to the Circuit Court whose jurisdiction to award compensation is unlimited;
ii. The victim nay bring a claim against employer or harasser or both for seeking damages and other remedies for breach of contract, negligence, infliction of harm, etc. under Common law. A victim of harassment is entitled to damages for any foreseeable loss (loss of earnings) or injury (psychological or emotional). Court may also award punitive or aggravated damages; and
iii. The victim may file a complaint before the Health and Safety Authority under Health, Safety and Welfare at Work Act 2005 indicating that the employer has failed in its duty towards the worker. Penalties for noncompliance with the provisions of above act may result in fines up to €300,000 and/or imprisonment term up to 02 years.
Source: Employment Equality Acts 1998-2015 S.14A, 15, 82; Health, Safety and Welfare at Work Act 2005 S. 78