What is sexual harassment?

Sexual harassment is defined by the Employment Equality Act 2004 as ‘unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

The Employment Equality Act 1998 (Code of Practice) Harassment Order 2012 provides a non-exhaustive list of behaviour which satisfies the definition of sexual harassment

• Physical conduct of a sexual nature
• Verbal conduct of a sexual nature
• Non-verbal conduct of a sexual nature, including pornographic or sexually suggestive images, objects, written materials, e-mails, texts or faxes.

When is an employer responsible for acts of sexual harassment?

An employer can be held vicariously liable for the acts of an employee, constituting sexual harassment under section 15 of the Employment Equality Act 1998. However it is a full defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment from occurring in the workplace and if/where it did occur, that action was taken to reverse its effect.

Similarly, if an employer is aware that an employee is exposed to the foreseeable risk of injury arising from sexual harassment and fails to take any, or any reasonable measures, to protect the employee for the risk of injury which ultimately befalls their employee, they will be held liable in a personal injuries case.

What redress is available for employees subjected to sexual harassment in the workplace?

An employee subjected to sexual harassment in the workplace can seek compensation before the Workplace Relations Commission. Where their complaint is upheld, an adjudicator can award a complainant up to two years remuneration.  Where the employee suffers recognisable psychiatric injury, they may have grounds to bring a personal injuries case against their employer. A personal injuries case is initiated by lodging an application with the Personal Injuries Resolution Board (PIRB) and general damages is calculated in accordance with the Personal Injury Guidelines. The claimant in a personal injuries claim can also claim for all reasonably incurred out of pocket expenses associated with their injury.

Time is critical in cases of this nature. The general rule is that a personal injuries claim must be initiated within two years from the date of injury. A Workplace Relations Commission complaint should be lodged by completing a single complaint form within six months of the date of wrongdoing. While this timeframe can be extended to 12 months, the possibility of extension is a matter for the discretion of the adjudicator. If a WRC complaint is deemed ‘out of time’ or ‘statute barred’ compensation is not payable.

How We Can Help?

Brigid O’Donnell, Solicitor, a native of Cashel, with offices in Clonmel, Co. Tipperary and Cork City, has extensive experience representing clients in complex personal injury and employment law cases. She has experience negotiating fair and appropriate compensation, often through mediation, for affected employees. She also has experience in conducting and winning trials to secure compensation for her clients.

She understands how stressful these cases can be, and she works hard to provide support, discretion, and clarity every step of the way.