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Understanding Employer liability where bullying and harassment occurs

Under the Employment Equality Acts 1998 – 2011, Employers have significant responsibilities for their employees’ behaviour – even when the employee acts without the employer’s knowledge or approval.

Because of this, it is very important that employers are fully aware of their responsibilities and have a policy in place that clearly outlines how employees can/should behave and what is not acceptable.

A good example of the employer’s liability is seen in an equality case – Sweeney v Board of Management Community School. A teacher at the school claimed that she was bullied and harassed by the Principal of the School. The Judgment stated quite clearly that the employer (the Board in this instance) was responsible even though the Board did not know or could not reasonably have known that the teacher was being bullied and harassed – effectively the employer was still vicariously liable for the wrongful acts of the Principal, when the acts were committed by him within the scope of his employment (whether on or off the premises).

This also raises the issue of an employee’s behaviour outside of their place of work – court cases have clearly shown that an employer can be held liable for the actions of an employee when off-site. Typical cases have been where the employee(s) were off-site in hotels or pubs, both in working time and outside of normal working time – a typical example of this is the Christmas party where it is held off-site and out of normal working hours.

So how do employers defend against this risk of vicarious liability?

Employers can take reasonable steps ensuring that their Bullying and Harrasment Policy is very clear and that there is a strong complaints policy for employees to pursue. Training of contact employees can also be of benefit, and inclusion/discussion with the Safety Representative and/or the Safety committee can be helpful, as long as this is done reasonably periodically and noted accordingly.

Reminding employees of their responsibilites and consequences of their actions is also really important. If an employer is holding an off-site event (particuarly with alcohol being provided by the employer) it makes sense to remind employees that they also have responsibiliteis and need to behave appropriately.

So when you are sending out the email inviting your employees to that Christmas party, dont forget to remind them that you expect them to have a great time but also behave well!