If you have been sexually harassed in your workplace, you can take a personal grievance claim to the Employment Relations Authority. For general information on personal grievances, see How to bring a personal grievance against your employer.
An employee may bring a personal grievance on the grounds of sexual harassment where:
An employee may bring a personal grievance against his or her employer for sexual harassment if the employee is requested by the employer to engage in sexual activity, or if the employer engages in unwelcome or offensive behaviour of a sexual nature, as follows.
An employee also has a right to bring a personal grievance claim against his or her employer for failing to deal properly with sexual harassment by fellow employees, as follows.
If a fellow employee or one of the employer's customers or clients makes a request for sexual activity or engages in unwelcome or offensive behaviour towards the employee (see the detailed definitions above), the employee may complain about this to the employer or to a representative of the employer. The complaint doesn't have to be in writing.
The employer or representative must inquire into the complaint and, if satisfied that it is well founded, must take whatever steps are practicable to prevent the request or behaviour being repeated.
If after a complaint has already been made there is further sexual harassment towards the complainant from the employee who was the subject of the complaint, and the employer hasn't taken practicable steps to prevent the repetition of the harassment, the employee can take a personal grievance claim against the employer as if the request or behaviour in question were that of the employer.
The approach of the courts has been to find that there has been sexual harassment when the workplace can be considered to be "poisoned". However, in reality this can be quite difficult to define and even harder to prove. The courts will not lightly find that there has been sexual harassment.
In accordance with the two types of "sexual harassment" stated in the statutory definition above, the courts have held that sexual harassment can fall into two categories: sexual coercion or sexual annoyance. "Sexual coercion" refers to attempts to coerce a subordinate to grant sexual favours by linking job benefits to sexual favours, whereas "sexual annoyance" is broadly defined as sexually related conduct.
In cases of sexual annoyance, assessing whether the complainant has been subjected to behaviour serious enough to justify discipline involves an examination of the language or conduct complained of. It must be of a sexual nature that can be regarded as unwelcome or offensive. The court must be able to find that the harassing behaviour has had a detrimental effect on the complainant: this may be in the form of causing embarrassment, offence or emotional distress.
The courts have been prepared to find there has been a constructive dismissal of the complainant if the complainant can show that the conduct in question caused him or her to resign.
The Act expressly states that, when the merits of a complaint are being assessed, the complainant's sexual reputation or experience is irrelevant.
Cases involving sexual harassment by fellow employees have been dismissed on the grounds of breaches of procedural fairness, which requires that an alleged offender be informed of the existence and nature of the complaint. This type of failure may support a claim by the fellow employee of wrongful dismissal (see How to bring a wrongful dismissal claim against your employer).
The courts have held that the dismissal of an employee cannot be based on previous actions that if considered together with the current complaint would make it more serious.
It may be that the dismissal of the offending employee is inappropriate in the circumstances. There are other options available that may be more suitable, such as warnings, final warnings, counselling or requiring an apology.
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