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Harassment, Sexual Harassment or a Harmless Joke?

A recent Irish Times Article highlights the misunderstanding or ignorance around sending jokes which appear to be harmless on the surface. Here a joke was sent purporting to highlight the difference in men’s and women’s methods of communication or how they interpret things.

Whilst it can be argued that many jokes are simply harmless banter, there is a real legal exposure for an employer who is aware that such jokes are being circulated and fails to do anything about it.It should be remembered that what one person could find funny, another person could be highly offended by it.

An employer could be liable for harassment, sexual harassment or even bullying if such jokes were circulated on an ongoing basis and depending on the content.

Harassment is prohibited or not allowed under the Equality Acts 1998 (as amended) on any of the grounds listed such as age, gender, race, religion, civil status, family status, sexual orientation, membership of the travelling community etc and disability. The Employment Equality Acts define harassment as “unwanted conduct” which is related to any of the 9 discriminatory grounds above.

The “unwanted conduct” includes spoken words, gestures, production and display of written words, pictures and other material (unwelcome emails or other offensive material).

Sexual harassment is any form of “unwanted verbal, non-verbal or physical conduct of a sexual nature”. Some examples include unwanted physical contact or unwelcome propositions.

It is also important to note that harassment and sexual harassment can be done by a number of people including a fellow worker, your boss, a client, or a customer. It does not have to be someone inside the company but could also be a supplier for example. It can also take place outside work for example on a night out or a training course.Employers should have policy and procedures in place to deal with and prevent harassment, sexual harassment at work. The policy should be written in a clear manner and explain simply what is unacceptable behaviour, how to make a complaint and how an employer will deal with any complaints. For those employers who currently don’t have policies in place, the Code of Practice on Harassment and Sexual Harassment at Work sets out some useful guidance and steps to follow if a complaint is made or how to prepare for a complaint.

Employers should take note that an employee cannot be treated differently for raising complaints at work or rejecting any unwanted behaviours as the employee could also have a claim for victimisation.

The Workplace Relations Commission deals with complaints of harassment, sexual harassment and victimisation. There is also some very useful guidance on their website.

Employer Tip – Make sure you have a policy in place that deals with complaints of harassment, sexual harassment and victimisation. If you don’t then start with the Code of Practice link above. There is also little point in having policies in place if employees are not aware of them. We recommend having a training day where possible and at the very least sitting down with employees to make them aware the policies are there. Where possible, employers should get the employee to sign an acknowledgement that they have received the policy and that it has been explained to them. Employers should also be mindful of those employees whom english may not be their first language and ensure they fully understand the policy.

Failure to have policies in place can result in an employee being awarded compensation and could also result in employers being named in Workplace Relations Commissions decisions thus having a negative public relations impact.

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