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Dealing with Harassment in the Workplace & Conducting Investigations

Harassment in the workplace can occur in a number of different forms. Sexual harassment is one of the primary forms, but there are also non-sexual types of harassment that can occur on the job.

What is Harassment?

The Employment Equality Acts, 1998 – 2015 specifically deals with harassment and sexual harassment in the workplace. Harassment and sexual harassment are defined and prohibited in relation to nine areas of potential discrimination which are Gender, Age, Marital Status, Family Status, Sexual Orientation, Disability, Race, Religion and Membership of the Traveller Community.

Harassment is defined as:

  • Acts
  • Requests
  • Words
  • Gestures
  • Production, display or circulation of material that is unwanted by the recipient, related to any of the discriminatory grounds, and 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.

What is Sexual Harassment

The Employment Equality Acts, 1998 – 2015 clearly defines sexual harassment as forms of unwanted verbal, non-verbal or physical conduct of a sexual nature 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.

Code of Practice on Sexual Harassment and Harassment at Work

This code of practice seeks to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected.

The code does not impose any legal obligations, nor is it an authoritative statement of the law. However, employers are encouraged to follow the recommendations in a way which is appropriate to the size and structure of their organisation.

That code states that an employer shall be legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless the employer took reasonably practicable steps to prevent sexual harassment and harassment from occurring and to reverse the effects of it and to prevent its recurrence.

Employers who take the steps that are set out in the code to prevent their employees from committing acts of unlawful sexual harassment or harassment or to reverse the effects of it and to prevent its recurrence, may avoid liability from such acts in any legal proceedings brought against them.

In line with the Code of Practice employers should:

  • Have in place an accessible and effective policy which covers harassment and sexual harassment.
  • The policy must include a detailed complaints procedure that will be available to employees to process their complaint.
  • Clients, customers and business contacts who interact regularly with the organisation should be made aware of the policy e.g. summaries of policies prominently displayed, leaflets, contracts could provide that sexual harassment or harassment of employees of the employer will constitute a repudiation of the contract and may be a ground for the employer to treat the
    contract at an end.

 How to deal with a Harassment Complaint

The complaints procedure within a Harassment policy should provide for both informal and formal methods of resolving problems.

 Informal

The informal procedure should provide that employees should attempt to resolve the problem informally in the first instance. In some cases, it may be possible and sufficient for the employee to explain clearly to the person engaging in the unwanted conduct that the behaviour in question is not welcome, that it offends them or makes them uncomfortable and that it interferes with their work.

In circumstances where it is too difficult for an individual to do this on his/her own, an alternative approach would be to seek support from, or for an initial approach to be made by a
colleague or designated person. The designated person could look at arranging a meeting between the two parties to discuss the employee’s concerns or alternatively mediation could be discussed as an option.  However, the employee should be made aware at the outset that any informal discussion does not prevent the complaint from being dealt with formally.

 Formal

The complaints procedure within a Harassment policy should provide for a formal complaints procedure. It might be the case that the employee making the complaint wishes it to be treated formally, that the harassment is too serious to be treated informally, that the informal attempts at resolution have failed or the harassment has continued beyond the informal procedure.

 A Step by Step guide to dealing with a formal complaint 

1. Appoint an Investigator

  • He/she must be completely impartial and unrelated to the complaint itself. 

2. Meet with the complainant

  • Request that they put their complaint in writing and sign and date this.
  • However, a written complaint should not be a requirement for the organisation to deal with the issue.
  • Advise the complainant that the alleged perpetrator will be informed and given a copy of the complaint. 

3. Notify the alleged perpetrator

  • The alleged perpetrator(s) should be notified that an allegation of harassment has been made against them.
  • They should receive a copy of the complaint.
  • They should be made aware that they will be afforded an opportunity to respond to the allegation(s). 

4. Conduct a Formal Investigation

  • The principles of Natural Justice should apply to any investigation.
    • Informed of the process form the outset
    • Right to know the specifics of the allegation(s) and evidence
    • Right to reply & sufficient time to prepare
    • Right of representation
    • Right to a fair and impartial decision
  • It is useful for the investigator to agree some Terms of Reference at the outset of the investigation to ensure clarity for all on the purpose, scope and process.
  • The investigator should meet with the complainant and alleged perpetrator(s) and any witness or relevant persons on an individual basis in order to establish the facts.
  • Formal invite letters should be issued for each meeting.
  • All parties may be accompanied by a work colleague/trade union representative as outlined in the company policy.
  • Minutes of the meetings should be recorded, and these should be read back to the interviewee and agreed at the end of the meeting. The interviewee should sign to indicate that the minutes are an accurate record of what was discussed.
  • Witnesses should be made aware that their statements will be circulated to the complainant and alleged perpetrator.
  • Witness statements should be circulated to both parties and they should be given the opportunity to respond.
  • A draft report should then be circulated to both parties and they should be given the opportunity to comment before the report is finalised.
  • A final report would then be issued by the investigator.
  • Both the complainant and the alleged perpetrator should be given the opportunity to appeal – the appeal must be heard by another manager/director who has not been involved in the initial investigation and who is not subordinate to the original investigator.

Our team of HR Consultants are skilled and experienced investigators and are available to discuss any related matter that this article highlights for you. Please don’t hesitate to contact us on info@voltedge.ie or call our office on 01 5252914.

Margaret McCarthy, HR Consultant

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