TUC Harassment Survey - Northern Ireland Perspective
We learnt this morning that in a survey of 1,500 women 52% stated that they had been sexually harassed at work with the majority of them failing to report it to their employer. TUC head Frances O'Grady said that such harassment left women feeling ashamed and frightened. She might have mentioned too that people often become less productive in the workplace when faced with harassment and levels of absence can sky rocket. She told BBC Radio 4's Today: "It makes us miserable at work where we just want to do our job and be respected." She also called it a "scandal" that so few women felt their bosses were dealing with the issue properly.
Where one employee harasses another the employer is often held liable for the harassment and accountable for any tribunal award. Yes, a defence is available to an employer but few in practice manage to successfully invoke it.
In Northern Ireland Article 42 of the Sex Discrimination Order states :-
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
Article 42(3) however provides a limited defence :
(3) In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.
In Northern Ireland identical clauses to Article 41(1) and (3) can be found in legislation covering other types of discriminatory harassment.
When considering what “such steps as were reasonably practicable to prevent the employee from doing that act..” actually mean Tribunals generally want to see evidence that the employer has :
- an up-to-date equal opportunities policy
- actively implemented the policy
- done recent training on equality issues
Previously, before popular use of the Internet, Tribunals may have had some sympathy with employers who pointed to the logistical difficulties of providing classroom based training to large numbers of employees across multiple sites. Not anymore with the advent of e-learning and training that can be done online at the user’s convenience.
Today, many employment lawyers would argue that evidence of recent equality training is a prerequisite for resisting liability under Article 42.
Barry Phillips, Chairman, Legal-Island