What is Harassment?
Under common law, four elements are needed to establish harassment.
- The conduct was done intentionally or recklessly.
- The conduct was repetitive.
- The conduct caused distress.
- The conduct was objectively offensive or harmful.
Harassment then, is a pattern of intentional or reckless conduct which distresses and is harmful.
Harassment traditionally was limited to cases of direct contact between the victim and the harasser, such as constant unwanted visits or pestering. However, in more recent times the legal definition of harassment has been broadened to encompass indirect communication.
For example, by communicating with them through contact with neighbours, employers or partners etc. The reality of indirect harassment cases is often complex. Therefore, while precedents for indirect harassment do exist, in practice, direct harassment cases still tend to be more straightforward and are easier to prove.
What is Sexual Harassment?
Sexual Harassment differs from Harassment in one key way; the unwanted conduct is of a sexual nature.
The two main categories of sexual harassment are;
- Quid pro quo: Refers to a situation of an abuse of a position of power to engage in unwanted conduct of a sexual nature, causing distress to the victim.
- Hostile environment creation: Hostile environment creation occurs when an intimidating or offensive environment is established through unwelcome sexual conduct, such as constant sexual comments or innuendos, making it difficult to work.
Digital Harassment: Recent Advances
In the past few years, harassment law has been broadened with the introduction of the Harassment, Harmful Communications and Related Offences Act 2020. This legislation provides protection against digital harassment. The main protections introduced in this new legislation relates to:
- Unconsented publishing or threats to publish intimate images with intent to harm.
- Recording or distributing intimate images without consent.
- Spreading grossly offensive or threatening communications with intent to harm.
Company Policies and Procedures around Harassment and Sexual Harassment
A modern prudent employer ought to have robust policies and procedures to allow safe reporting and processing of any allegations of Harassment and Sexual misconduct in the workplace. The first avenue of reporting is normally to the employer.
If allegations are advanced that may constitute crimes, they may be reported to An Garda Siochaná.
If the employer refuses to deal with a harassment claim or allegation or if it wilfully condones or turns a blind eye to such misconduct, then it may be possible to advance the claim in another forum. Cases of workplace harassment may not expressly qualify as a crime. However, if it does, and such a criminal report is made the criminal investigation will take precedence. Some situations that workplace harassment would become criminal would be if there was a physical assault, a sexual assault, threats or hate crime. However, it is advisable to seek legal help to determine which claim to pursue.
Filing a claim of Harassment or Sexual Harassment in the Workplace setting
Another important factor to consider before initiating a WRC claim is whether the assault is genuinely connected to the workplace. If the harassment is determined to be unrelated to the workplace, the only available recourse may be through the criminal justice system. Hence, it is crucial that both the location(s) and the perpetrator are linked to work-related circumstances. Specifically, the harassment must occur within your place of work, during work-related events, or at a work-related gathering. Moreover, the harasser must fall into one of the following categories: your employer, superior, co-worker, client, or any other person relevant to the business, such as staff members of the workplace facility.
To illustrate, some common examples of workplace harassment would include.
- Verbal Harassment
- eg offensive comments from a superior
- Physical Harassment
- eg shoving from a co-worker
- Written harassment
- eg constant messaging from another employee
- eg exclusion or excessive monitoring by superior
- Physical conduct of a Sexual Nature
- eg unnecessary touching of another employee
- Verbal conduct of a Sexual Nature
- eg pressure from a colleague to engage in sexual contact or other unwanted, suggestive remarks
- Written conduct of a Sexual Nature
- Eg emails, texts, social media posts etc.
- Other conduct of a Sexual Nature
- Display of sexually suggestive pictures, whistling, constant staring or watching
- Gender-based conduct
- Degradation which is gender-based, including anti-transgender conduct
Where to bring a claim of Harassment or Sexual Harassment
In Ireland, if you wish to bring a claim regarding workplace harassment, you would typically bring the claim to the Workplace Relations Commission (WRC) rather than the Four Courts. The precise formulation of the claim should be on advice.
The WRC is an independent statutory body which deals with a range of employment-related disputes, including harassment complaints.
The WRC essentially provides a forum for dispute resolution. Unlike the Four Courts the WRC is designed to be accessible and user-friendly, to encourage individuals to step forward with complaints related to employment, including harassment claims.
Setanta Solicitors advise both employers and employees on employment law. Please contact us to schedule a no obligation consultation at firstname.lastname@example.org or 01 215 0168