knowledge 13 April 2022 |

IHREC Publishes New Code of Practice Part 1: Workplace Harassment

In this first part, we will consider the new Code of Practice on Sexual Harassment and Harassment, and in the second part we will consider the impact of the new Code of Practice on Equal Pay.

The Irish Human Rights and Equality Commission

Established in 2014 under the Irish Human Rights and Equality Commission Act 2014, the IHREC is Ireland’s national human rights and equality institution. The IHREC has the stated purpose of protecting and promoting human rights and equality in Ireland and building a culture of respect for human rights, equality and intercultural understanding in the State. Under the 2014 Act, the IHREC may draft codes of practice in furtherance of, amongst others, the elimination of discrimination and the promotion of equality of opportunity in employment.

Sexual Harassment and Harassment Code of Practice 2022

There was a previous Code of Practice from 2012 which addressed the issue of workplace harassment from 2012 and many of the principles from that previous iteration have been restated by the IHREC in this new Code. In particular, the new Code reiterates:

• Employers are “legally responsible for harassment suffered by employees in the course of their employment unless s/he took reasonably practicable steps to prevent it, to reverse the effects of it and to prevent its recurrence.”

• The importance of having a policy on harassment as being “an integral part of equality strategies in the workplace”.

• That the “essential elements” of harassment are that the behaviour “must firstly be unwelcome”, that “the behaviour must have the purpose or effect of violating a person’s dignity”, and that “[t]he intention of the perpetrator of the sexual harassment or harassment is irrelevant”.

• That the protection afforded to employee extends to harassment by the employer, fellow employees, clients, customers, and “other business contacts including any person with whom the employer might reasonably expect the employee to come into contact in the workplace.”

• That “[e]mployees, including those in management and all other positions of responsibility, should be made aware of the policy as part of any formal induction process”. The provisions in respect to communicating to non-employees remain unchanged also.

• That a policy should include a commitment to training managers, supervisors, and all staff on strategies to prevent harassment.

However, the IHREC’s new Code has also updated and modernised the area and has included a number of various changes that employers will need to be aware of as part of its wider equality strategy.

Harassment Policy

It is vitally important that employers introduce a policy on workplace harassment and ensure that such a policy is regularly reviewed and updated. This is particularly important as the new Code has further clarified what is expected of employers in this respect, including:

• A noteworthy addition is that the harassment policy should include “a statement encouraging employees to challenge harassment and sexual harassment in the workplace”. As this was not a feature in the 2012 Code, it is likely that many workplace policies do not call on employees to challenge harassment in this fashion.

• In modernising the guidance, the IHREC has specifically recognised that harassment may take place via social media and that this ought to be reflected in an employer’s workplace harassment policy.

• The new Code is more strongly worded that in its 2012 predecessor in respect to the contributions to be made by fellow employees, and specifies that “[t]he policy should state that employees must respect the dignity of others in the workplace”. Furthermore, the Code reiterates that employees must co-operate with management strategies in “a harassment-free work culture” and that “harassment by employees constitutes misconduct and may lead to disciplinary action.”

• The new Code reiterates that the policy should include a commitment to a regular review of the policy itself and that “[a] competent person with the appropriate qualifications, training and experience should be designated to ensure that monitoring, training and reviews occur.” Helpfully, the Code clarified that this may “be provided by a competent person outside the relevant organisation.”

Senior Level Champion

Interestingly, the Code introduces a new concept of designating a “senior level champion”, namely that it may be practicable for organisations, depending on size and other factors, to designate one or more champions at a senior level. Such a ‘champion’ would be outside the HR structure and would be an independent voice advocating for a diverse workplace culture free of harassment where all employees feel respected. The introduction of a designated champion would likely be a relevant consideration as to whether an employer, faced with a workplace harassment complaint, can avail of the defence that it had taken “reasonably practicable steps” to prevent the harassment, to prevent the victim from being treated differently in the workplace or in the course of employment, and to reverse any effects of the harassment.

Harassment Complaint Procedures

The new Code has broadly retained the same procedural requirements from its predecessor, namely that harassment complaints may be resolved on either an informal basis or through a formal procedure.

This is noteworthy as the separate 2020 Code of Practice on Prevention and Resolution of Bullying at Work, developed by the Workplace Relations Commission and the Health and Safety Authority, had introduced a secondary informal process in addition to informal and formal processes. This is a timely reminder for employers that whilst the terms “bullying” and “harassment” are often used interchangeably, there are importance differences between the two terms. In particular, and in addition to the aforementioned differences in the procedures that must be followed:

• Harassment concerns unwanted conducted related to the nine discrimination grounds / protected characteristics, whereas bullying concerns “inappropriate behaviour” for any reason.

• Bullying only arises where the inappropriate behaviour is “repeated”, whereas harassment can occur on the basis of a one-off event.

A central criticism of the previous 2012 Code was that it had specified that “Employees should be informed that, in the event of the complaint being upheld, the disciplinary process will be invoked which may lead to disciplinary sanctions up to and including dismissal” (emphasis added). This created difficulties as it intimidated that employers should specify if a complaint was “upheld” at the conclusion of the investigative process and prior to the commencement of any formal disciplinary procedures, and such a conclusion could in fact breach an alleged perpetrator’s rights to natural justice and fair procedures. A further difficulty was that the above wording appeared to create a positive obligation to invoke disciplinary procedures if the complaint was upheld, notwithstanding that other measures short of disciplinary action (mediation, training, etc.) may have been more suitable. It is notable, therefore, that the new 2022 Code now states that “if the investigation concludes that the accused employee has a case to answer, then the report will recommend whether the organisation’s disciplinary procedure should be invoked, and this may lead to disciplinary sanctions up to and including dismissal” (emphasis added). This revised wording, it is suggested, is more compatible and conversant with natural justice requirements and employers will likely need to carry out further training with key personnel on the type of findings contained in reports that are issued following a harassment investigative process.

Right of Appeal

A key feature of the new Code is that the formal procedure “should allow for a right of appeal of the initial decision, to be made within a specified timeframe”. There is, therefore, a more definitive expectation, when compared to the 2012 Code, that employees will be afforded a right of appeal following the conclusion of a harassment investigation.

Action Points

Employers will need to ensure they are fully aware of the new Code of Practice. In particular, employers should consider the following action points:

• In the event that an employer receives a workplace harassment complaint, it is essential that every effort is made to address the complaint promptly. Furthermore, the procedure adopted must be consistent with the expectations set out in the Code of Practice.

• However, it is also vitally important that employers do not simply react to harassment complaints as and when they arise. Preventative measures which reduce the likelihood of harassment occurring in the first instance should be adopted. Such measures include issuing a comprehensive policy, providing training to employees upon induction and at appropriate awareness-raising initiatives, regularly monitoring harassment in the workplace through complaints received or through staff surveys, etc.

• Employers will need to review their workplace harassment policies in light of the new guidance set out in the updated Code, particularly in respect to the right of appeal, harassment via social media, the role of a Senior Level Champion (if applicable), and the role of fellow employees in contributing to a harassment-free work culture.

• Furthermore, employers should consider carrying out additional training with management on this new guidance. This could include training on changes to your workplace policy and training on how to effectively respond to / investigate a harassment complaint.

Also contributed by Alan Hickey