Sexual Harassment – Employer Liability for Acts of Contractor

In A Shift Supervisor v A Manufacturing Company ADJ-00025046 the complainant employee was successful in her claim for sexual harassment against her employer. She claimed that she was sexually harassed by a contractor who came on site. The Contractor was a lorry driver who came on site to collect / deliver product from the Company. The Complainant made a formal complaint to the Respondent.The employee argued that the investigation held was was unsatisfactory and that her employer failed to address her concerns in any realistic manner. She also argued that the provisions of S.I. No. 208/2012 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 were not applied in any real or meaningful way.The Workplace Relations Commission Adjudicator noted that the Respondent employer had no policies on Sexual Harassment or indeed any Employee Handbook. The Adjudicator found that Sexual Harassment had occurred but had not been dealt with in line with the detailed requirements of section 14 of the Employment Equality Act,1998 or S.I. No. 208/2012 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.The Adjudicator noted that the alleged Perpetrator was not an Employee of the Respondent, but the incidents took place on Company property. It observed ” Legal Precedents clearly indicate that the Respondent had a duty of care to his employees and is liable even if the Perpetrator was not their direct employee”Although the complainant was only awarded a small sum of compensation, this case is a clear reminder for employers to have the appropriate workplace policies in place and to ensure they are familiar with the Code of Practice on Harassment outlined. Many employers mistakingly believe that they are not responsible for the acts of non employees on their premises. This is incorrect as set out in Section 14 of the Employment Equality Act 1998 (as amended) below.Harassment and sexual harassment.14A. — (1) For the purposes of this Act, where —(a) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is —(i) employed at that place or by the same employer,(ii) the victim ’ s employer, or(iii) a client, customer or other business contact of the victim ’ s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,or( b ) without prejudice to the generality of paragraph (a) —(i) such harassment has occurred, and(ii) either —(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or(II) it could reasonably be anticipated that he or she would be so treated,the harassment or sexual harassment constitutes discrimination by the victim ’ s employer in relation to the victim ’ s conditions of employment.(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1) , it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —( a ) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and( b ) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim ’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.