Sexual Harassment in the Workplace
In recent months society has been inundated with an unprecedented level of accusations against high profile individuals ranging from Hollywood heavy weights, social influencers, public figures and even Presidents combined with the increased antisocial online behaviour motivated by atypical social rewards has truly lifted the lid off of matters. This is not a problem attached to foreign shores, exposures nationally have reminded the general public of the secret nature of the offence of sexual assault. We have witnessed a number renowned Irish media figures being labelled sexual harassers. A recent example is the accusations against the former Gate Theatre director, Michael Colgan, by a number of former colleagues. Such disclosures have not solely been reserved to such high profilers and public persona’s. The sexual assault and harassment allegations against the Hollywood elite, Congressmen and news anchors has triggered a wave of “me too” allegations. The social media campaign which encouraged disclosures globally under the #MeToo platform has enabled and empowered women predominantly to register their own personal experience(s) of sexual harassment in the workplace in solidarity. The momentum and ramifications of recent accusations have ignited a global debate on the liability of employers and the clear necessity to conduct a comprehensive review of the parameters in place to deal with such claims. Social media has become a prominent platform for activists and politicians alike to promote their agenda. When the messaging service “Whatsapp” launched it quickly became the main messaging facility for group messaging. Like all lucrative inventions the app’s system of secure end to end encryption protection also attracted those with a more sinister intent, with the result that cyber bullying and/or harassment ensued, which has caused its own difficulties. As you are no doubt aware, this behaviour can include posting rumours, threats, sexual remarks, a victims’ personal information, or pejorative labels to online fora, including Facebook, Twitter, gaming for a, WhatsApp, etc. However, the protected environments have created a whisper network which in turn has resulted in the mass disclosure of sexual abuse scandals. The Whatsapp messaging forum played a crucial global role on reporting sexual harassment in politics, media and journalism. The ease that information can be shared has meant that abusers may no longer hide their illicit acts. Victims are now more empowered to record and report explicit pictures, crude messages and harassing voicemails. In the United States Non Disclosure Agreements (NDA) and arbitration agreements have been used to force employees to sign away their rights. However, these provisions are now the subject of challenge in some US States who are calling for measures to limit the use of both mechanism which they contend protect the harassers and silence their victims.
2. European Position – Background
The term “sexual harassment”, especially within the workplace, is a relatively new concept across the European Union. Many Member States reported a low awareness and cultural lack of acceptance, equating it to simple banter to make the workplace feel less austere. Sexual harassment initially fell under the umbrella of unequal treatment as per Council Directive 76/207/EEC1 which prohibited unequal treatment on the grounds of sex as regards to access to employment. The principle of equal treatment provided that there shall be no discrimination whatsoever on grounds of sex. This prohibition of unequal treatment on the grounds of sex was later expanded by the Framework Equality Directive 2000/78/EC2 which prohibited harassment on the ground of race, religion, disability and sexual orientation. It was not until the adoption of Amended Equal Treatment Directive 2002/73/EC3 that Member States were required to outlaw sexual harassment. This Amended Equal Treatment Directive 2002/73/EC defined harassment related to sex and sexual harassment as discrimination and placed a proactive obligation on Member States to specifically outlaw sexual harassment.
- harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment;
- sexual harassment: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
Article 2, paragraph 3 of the Amended Equal Treatment Directive 2002/73/EC further provided:
- Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on the grounds of sex and therefore prohibited. A person’s rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person.
Following this the Recast Directive 2006/54/EC4 (the “Recast Directives”) repealed Directive 2002/73/EC. The Recast Directive retained the above definitions and widened the scope of application of the provisions on harassment relating to sex and sexual harassment. Paragraph 6 of the preamble stipulated that:
- Harassment and sexual harassment are contrary to the principle of equal treatment between men and women and constitute discrimination on grounds of sex for the purposes of this Directive. These forms of discrimination occur not only in the workplace, but also in the context of access to employment, vocational training and promotion. They should therefore be prohibited and should be subject to effective, proportionate and dissuasive penalties.
The purpose of the Recast Directive was to better address harassment related to sex and sexual harassment in the workplace and in respect of access to employment, vocational training and promotion. Paragraph 7 of the Recast Directive placed a positive obligation on employers and those responsible for vocational training to actively:
- take measures to combat all forms of discrimination on grounds of sex and, in particular, to take preventive measures against harassment and sexual harassment in the workplace and in access to employment, vocational training and promotion, in accordance with national law and practice.t
Article 26 of the Recast Directive also called upon Member States to “encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace, in access to employment, vocational training and promotion”. The Recast Directive further prohibited victimisation and encouraged Member States to take effective measures to prevent all forms of discrimination on the grounds of sex, in particular harassment and sexual harassment.
3. Sexual Harassment (Irish context)
Sexual harassment is recognised as constituting an intolerable affront to the dignity of men and women at work. It is prohibited as being a form of discrimination under Irish law and is defined (in accordance with the Directives) under section 14A of the Employment Equality Acts 1998 – 2015 (the “EEA”), specifically, section 14A (7) (a) (ii) of the EEA as: “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A (7) of the EEA further extends the definition to: “such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”. The statutory definition is subjective and includes conduct that creates an offensive environment for the person. The definition for sexual harassment comprises of two essential parts: (i) Unwanted – subjective approach depending upon each claimant. (ii) Violation of dignity – sexualised expressions or conduct touch upon an aspect of a person’s life that is intensely connected to their self-esteem and dignity. Exposure to such behaviour should always be experienced on a voluntary basis, wherein they retain complete freedom to reject such activities where unwanted. Sexual offences are not only an intrusion on bodily and mental personal integrity, but also a violation of personal human dignity. Subject to section 14A (1) (a) (i -iii) of the EEA, employees are protected from being subjected to sexual harassment from: – Their employer; – Fellow employees; – Clients; – Customers; or – Any other third party with whom the employer may reasonably expect the employee to come into contact with in the workplace. The Labour Court recently reaffirmed in Dublin Bus v McCamley (a case concerning harassment on race and religious belief grounds) that section 14 A EEA applies to conduct that occurs outside the workplace. Moreover, there is no requirement to show that the perpetrator was acting in the course of, or within the scope of their employment. In this matter:
- The claimant was an activist in SIPTU during the course of his employment with the respondent.
- SIPTU and the National Bus and Rail Union (NBRU) both represented drivers employed by the respondent and there existed a history of inter-union rivalry between the two unions.
- Following a conciliation conference at the then LRC in a dispute involving the respondent and both unions, a member of the NBRU, who was also an employee of the respondent, posted disparaging and offensive remarks relating to the religion and nationality of the claimant on Facebook (the Facebook incident).
- The claimant made a formal complaint to his Manager in reliance on the respondent’s dignity at work policy but was advised that no action could be taken as it had occurred outside of the workplace. He appealed this decision before the head of Human Resources of the respondent who held that the respondent had a duty to investigate the complaint on the grounds that the company rule book provided “Employees shall not conduct themselves in any manner prejudicial to the reputation and welfare of fellow employees”.
- Ultimately, disciplinary sanctions were imposed against the accused harasser, but a delay of six months occurred first as a result of the accused’s absence on sick leave. * In his claim before the Labour Court, the claimant said that the Facebook incident and a number of earlier incidents of harassment were part of a pattern of discriminatory treatment against him by fellow employees.
- These included:
- an incident of assault which occurred on an occasion when the respondent was attending a function hosted by the Respondent
- graffiti of a personalised and highly offensive nature about him in a staff toilet, which he submitted that it took weeks to have removed.
- The claimant submitted that the respondent failed to take effective measures in order to prevent the harassment and was therefore not in a position to avail of the defence prescribed under section 14A (2) of the EEA.
- The Labour Court held that the offending comments posted in the Facebook incident were intended to impact on the claimant while exercising his role as a worker representative, a role he performed in the course of his employment and that the respondent would be liable for harassment unless it could avail of the defence provided by section 14 A (2) of the EEA.
- As regards the other incidents, the claimant did not make a formal complaint to the respondent about the assault in 2008 and it had occurred four years previously so the Labour Court could see no basis upon which it could be held that it was sufficiently connected to the Facebook incident so as to be characterised as manifestations of the same harassment. The graffiti was not formally complained of until the Tribunal hearing in 2014 and thus was statute barred.
- In respect of the Section 14 A defence, the Labour Court noted that the respondent had a policy against harassment at work in its employee handbook. Although it did not prescribe a provision specifically prohibiting harassment via the use of social media, the Labour Court considered that the provision covered a wide ambit of acts and further noted the extent of publication by the respondent to its employees. As a result, it accepted that the respondent had the ability to avail of the defence of that EEA provides under section 14A (2). There is no requirement to show that the perpetrator was acting in the course, or within the scope, of their employment. The proper test is whether the victim experienced harassment in the course of their employment.
Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 The definition under section 14A (7) (a) (ii) of the EEA was bolstered by the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (“the Code”) which acts as a practical guide for employers, employer’s organisations, trade unions and employees on: – what is meant by sexual harassment and harassment in the workplace; – how it may be prevented; and – what steps to take if it does occur to ensure that adequate procedures are readily available to deal with the problem and to prevent its recurrence. The purpose of the Code is 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. It is applicable to all employments, employment agencies and trade unions that are covered by the EEA. The provisions of the Code are admissible in evidence; however, the Code does not impose any legal obligations in itself. The Code defines sexual harassment as: “a form of discrimination on the gender ground in relation to conditions of employment” and endorses the definition provided for under Section 14 A (7) EEA. It provides that the definition is subjective in nature and must be unwelcomed behaviour which may range from persistent and continuous acts to a single incident which occur in the course of employment. In addition, it must also “have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person”. The intention of the perpetrator is immaterial, the effect of the behaviour on the behaviour on the employee is what is relevant. The Code reiterates that prevention “is the best way to minimise sexual harassment and harassment in the workplace”. This is to be achieved by the implementation of an effective anti-harassment and dignity at work policy. The Code places emphasises on the employer’s duty to “adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment.” The Code recommends that anti-harassment policies be communicated effectively to all those employees potentially exposed and should contain the following: – a definition for sexual harassment and harassment; – a non-exhaustive list of examples; – outline that the protection extends to sexual harassment and harassment by co-workers, clients, customers and other business contacts. That this extends beyond the workplace to work related events; – prohibit victimisation for rejecting/accepted the harassment or making a complaint; – that it extends to employment agencies or vocational training; - that the subject of the unwanted behaviour is up to the employee to decide; and – provide a comprehensive complaint and investigation procedure. The Code states that sexual harassment can have a “devastating effect upon the health, confidence, morale and performance of those affected by it” and further outlines the adverse effects of harassment for employers including the effect on profits as a result of absenteeism, possible sick pay and loss of staff members. Although the Code is not legally binding upon employers, it has been recognised as a source of guidance and defence and may be referred to in litigation under the EEA. Any failures to adhere to the terms of the Code will weaken an employer’s defence that reasonable steps were implemented. Defence for employers: Section 14A (2) of the EEA provides an employer with a full defence against a claim of harassment or sexual harassment where the employer may prove they took such steps as were reasonably practicable to: (a) prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim; and (b) 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. An employer should demonstrate that reasonable preventative measures were taken before the occurrence of the offending conduct. It is recommended that an employer have in place anti-harassment and dignity at work policies and that they are effectively communicated to all employees. In addition, managers should receive appropriate training in respect of the complaints procedure and preventative measures. It will not be sufficient for an employer to show that a policy was in place without being able to demonstrate that the managers responsible for its implementation understood the content and importance of adherence to the policy. Sexual harassment by non-employees The protection can apply to conduct that occurs outside the workplace. A Worker v A Hotel (DEC E2009 062) * Employer can be liable for the actions of its customers; * On the first occasion Mr. A, a customer, approached the claimant in the kitchen area of a hotel whilst she worked, he positioned himself behind her and wrapped his arms around her. The claimant broke free and walked away from the customer. * Approximately half an hour later the claimant was due to serve breakfast. However, she could not go out on the floor to work as she was unnerved by the customer seated there. * The claimant made a complaint to her manager Mr. B and was later summonsed to Mr. B’s office where she found Mr. A sitting. * Mr. A denied the accusation but offered a token apology and touched her on the shoulder to which the claimant found humiliating. * The claimant later made a formal complaint and requested notification of the procedures in place. * Mr. B met again with the claimant and advised that there were no further procedures. * At a later occasion in the course of her employment the claimant met Mr. A and Mr. B chatting socially at the bar of the hotel. She felt unnerved at the friendship and left her position on sick leave, eventually resigning. * The respondent was found to have no policy in place attempted to deal with the matter informally by seeking an apology from the accused. * It was held that the respondent’s manner of addressing the matter showed no concern for the claimant’s welfare and only served to aggravate the claimant’s feelings of intimidation and distress. * The respondent was found to be liable for the discriminatory dismissal of the claimant on the ground of sexual harassment experienced in the respondent’s employment. A Boys Secondary School v Two Female Teachers (Determination AEE/01/9) 2002 * Labour Court held that the employer had failed to properly exercise its control so as to protect the claimants by providing a place of work free from harassment. * The claimants were teachers in a boys secondary school and alleged that they were subjected to sexual harassment in the course of their employment by the students of the respondent’s school. * Students would stand up close to the complaints in a sexually expressive inappropriate fashion, submit sexually explicit material, make inappropriate comments and offensive remarks and attach post it notes to their person containing explicit sexual statements. * Complaints were made to the Board of Management of the school but it failed to take appropriate action to protect them. * It was held that the employer had not acted effectively to reverse the effects of sexual harassment and it was clear that the school board of management did not accept the gravity of the harassment.
Behaviour that constitutes sexual harassment
Ms A v Boards of Management Secondary School in the South of Ireland (DEC-E2015-146) * The claimant had been the subject of an unwelcome sexual approach by Mr. B whilst attending a colleagues wedding. * Mr. B was not a colleague of the claimant at the time but was connected to her position of employment via a sporting connection. * Subsequently Mr. B accepted full time employment in the claimant’s place of work. Upon discovery of this the claimant immediately reported her concerns to her employer. * The complaint was disregarded and Mr. B would stare and smirk at her when they would come into contact at work. * A climate of fear was created by Mr. B which was ignored by the claimant’s employer. * Following a further official complaint by the claimant an investigation was commissioned by an external principal. However, the conclusions were vague leading to an appeal which found in favour of disciplining Mr. B. * However, Mr. B infrequently showed up at the workplace causing continued distress to the claimant. * It was found that the employer failed to have taken reasonable and practicable steps to prevent further incidents of sexual harassment and was vicariously liable for the acts of Mr. B Instead Section 15 of EEA places vicarious liability on the employer who must firmly demonstrate that the alleged harassment did not take place or that reasonable measures were taken to prevent it.
No policies in place
Section 14A (2) of the EEA provides employers with a statutory defence against claims of discrimination on the ground of sexual harassment. The defence may be available where the employer can show that they took reasonable and practicable steps to prevent harassment as well as implementing reasonable steps to reverse its effects. Catlan Trading Limited v McGuinness ADE/16/78 2017 * The claimant was a sales assistant in a store and made a complaint against an adjacent store worker alleging sexual harassment. * The claimant submitted that her employer failed to investigate appropriately or take effective measures. She claimed to have reported the harassment to her manager who told her to ignore it. At no point did she make a written complaint. * The respondent’s position was that the claimant never formally made a complaint. However, they did witness a harassing incident and immediately proceeded to take steps to prohibit the conduct complained of. Statements were taken from witnesses and the alleged harasser was suspended by his employer and removed from site. * The respondent wrote to the claimant apologising for the abuse and committed their support to her. * The respondent did not have in place an anti-harassment or dignity at work policy at the time of the alleged harassment. * The size or staff force of an employer does not exempt them from having in place reasonable measures to address this issue. * The respondent was found liable for the harassment suffered. Mrs C v A Multi National Grocery retailer E2015 – 079 * The claimant was employed as a cashier before being promoted to team leader. * She alleged that she was attending the store room one day when a security guard followed her, closed the door behind her and without warning started to grope her buttocks in a massaging motion. * She later approached her manager about the incident and reported that she was upset as regards to his causal acceptance of events. * An investigation was conducted however the accused was not suspended with pay during. The claimant also discovered the accused was permitted to read her official complaint. * As a result of the investigation she was informed that the only remedy available was to mark a comment on the accused’s file but could not proceed due to lack of evidence. No appeal was offered. * It was found that the respondent investigated the complaint inadequately. Managers gave evidence that they were not formally trained in or aware of the procedures involved with sexual harassment investigations. It was clear that the implementation of the policy was not effective. Little was done to prevent sexual harassment and even less was done to reverse its effects on the claimant. * The respondent was held liable for discrimination. The above case repeats the rule that an employer must demonstrate it took reasonable and practicable steps to prevent sexual harassment as well as steps to reverse its effects before they may avail of the statutory defence.
Equality legislation does not provide for liability on part of the individual harasser. Instead where harassment is perpetrated by an employee in Ireland, the employer will be directly liable. An employer will be legally responsible for sexual harassment suffered by their employees in the course of their work. As a general rule a claim for discrimination/harassment on the ground of gender must be submitted to the Workplace Relations Commission within 6 months of the last act of the discrimination8. The claim can be heard by a sole adjudicator in private. Redress for acts of discrimination is provided for pursuant to Section 82 of the EEA and is also actionable as a tort in a Circuit Court. he maximum amount which may be ordered by way of compensation, for an employee is: – where the claimant was in receipt of remuneration at the date of dismissal, an amount equal to the greatest of: (i) 104 times the amount of that remuneration, determined on a weekly basis; (ii) 104 times the amount, determined on a weekly basis, which the claimant would have received but for the act concerned; (iii) €40,000; – in any other case €13,000 (Non-employee). The Circuit Court may, pursuant to section 82 of the EEA, make an order the following: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 6 years before the date of the referral; (b) an order for equal remuneration from the date of the referral; (c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. It is important to note that no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration, which may be ordered by the Circuit Court in gender discrimination claims. The trend for sexual harassment claims is that increasingly they are being issued by Plaintiffs in the Circuit Court because the case can be heard publicly and there are not the same restrictions or limits on compensation. Other developments: Employers can also face High Court proceedings for personal injury, where the recipient of harassment can establish that he/she has sustained a psychiatric injury as a result of the harassment. If the claim is successful, compensation for injury, loss of earnings and loss of future earnings may be awarded. General damages for injury are generally no more than €60,000 and, in practice, loss of earnings is not often awarded (although this may change and depend on the individual circumstances of the case). These claims must be brought within 2 years of the cause of action. A recent High Court judgment, Lyons v. Longford Westmeath Education and Training Board  IEHC 272, has potentially troubling ramifications for sexual harassment complaints in the workplace. Lyons does not pertain to sexual harassment but rather to an employer’s bullying investigation, in respect of which the High Court found that the alleged perpetrator of bullying ought to have been permitted legal representation during the investigation process and, furthermore, that he or his lawyer ought to have been permitted to cross-examine the claimant. Because the alleged perpetrator had not been afforded these entitlements, the process was deemed in breach of his Constitutional right to fair procedures and the employer consequently had no right to proceed to disciplinary hearing. The case to an extent turns on its particular facts, and on the particular High Court judge. However, there are some concerns about the potential dampening effect it could have on complaints of sexual harassment. The decision is currently under appeal. Irish Congress of Trade Unions has recently called for complaints of sexual harassment to be covered by the Protected Disclosures Act 2014. The Council of the European Convention on preventing and combating violence against women and domestic violence, otherwise referred to as the Istanbul convention10, adopted that parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to a criminal or other legal sanction.
4. European Member States
Most European countries have implemented the prohibition of sexual harassment through specific anti-discrimination legislation, often with a broader scope than those provisions provided for under the Directives and covering working life and course of employment. However, the implementation of harassment protections may be seen to effectively be hidden behind more general regulations against victimisation or violence at work, competing with more general forms of mobbing or bullying. UNITED KINGDOM Section 26 Equality Act 2010 provides that sexual harassment occurs where a person engages in ‘unwanted conduct of a sexual nature’ the purpose or effect of which is to violate the claimant’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for him or her11. The prohibition applies to employment, education, housing, the provision of goods, facilities and services, and the delivery of public functions. The definition complies with that in Article 2 (1) (c) of Directive 2006/54. In respect of the harasser financial liability is at the discretion of the Equality Tribunal. There exists the potential for criminal liability if assault or harassment falls within the Protection from Harassment Act 1997, sanctions may include a fine, community service or a prison sentence. Financial liability is also at the discretion of the Equality Tribunal with regards to the employer. Should the employer and employee both be liable then they will be jointly and severally liable. Compensation for discrimination and harassment is based upon the loss suffered by the victim. This is assessed as (a) financial loss (including past and future earnings, pension loss and loss of benefits) (b) non-financial loss (precedence dictates usually around £42,000 but may exceed this figure) and (c) potential liability for personal injury (e.g. psychiatric damages, aggravated damages or exemplary damages). The Equality Act 2010 prohibits harassment by employers and imposes vicarious liability on employers for the civil wrongs perpetrated by employees in the course of their employment. The prohibition extends to social functions and other such events that occur within the confines of the workplace. There exists no liability on employers for discriminatory acts by third parties. Pursuant to Hajrowski v Guy’s and St Thomas’ NHS National Trust12 employers may also be vicariously liable for the actions in respect of their staff. Recent developments: The most recent sexual harassment scandal resulted in the resignation of Michal Fallon from his position as defence secretary. His resignation follows in the wake of journalist Jane Merrick’s formal complaint to Downing Street accusing Mr. Fallon of lunging at her in an attempt to kiss her following a lunch in 2003. Ms. Merrick’s complaint follows numerous others against Mr. Fallon, such as lewd remarks reported by Commons leader Andrea Leadsom and groping reported by Julia Hartley-Brewer. It would appear that Mr. Fallon’s departure follows after a pattern of allegedly unacceptable behaviour over the course of many years. Mr. Fallon is not alone in respect of recent claims of sexual harassment. There have been a further string of Labour MPs who have had to respond to accusations in recent months. Tory MP, Charlie Elphicke, has been suspended from his position in lieu of “serious allegations” which the Tory party have passed to police. Labour MP Clive Lewis denied claims that he groped a woman during a conference in September 2017. MP Ivan Lewis who was formerly the Foreign Office Minister has rejected claims that he made non-consensual advances towards a number of women and Labour MP Helvin Hopkins has denied all allegations of inappropriate conduct made by activist Ava Etemadzadeh. FRANCE The initial definition of sexual harassment was found to be unconstitutional by the French Constitutional Court, which stated that the definition was not sufficiently clear or precise (CC 4 May 2012, QPC, No. 2012-240). This decision came as a bombshell, as it removed the prohibition on sexual harassment from the French Criminal Code. This decision left a legal vacuum in the Criminal Code as from the date of its publication no one could be convicted or punished on the ground of sexual harassment, as the offence no longer existed, and alleged offenders were systematically discharged. The French legislature quickly addressed this issue and a new law was adopted in August 2012. It includes a new definition of sexual harassment which is very similar to the European one (see Article 222-33 of the Penal Code and Article L. 1153-1 of the Labour Code). The new law defines harassment as imposing on someone, in a repeated manner, words or actions that have a sexual connotation and either affecting the person’s dignity because of their degrading or humiliating nature or putting him or her in an intimidating, hostile or offensive situation. One single act can also give rise to prosecution where someone is using any kind of serious pressure, with the real or visible goal of obtaining an act of a sexual nature. Where harassment is perpetrated by an employee, both the employer and the employee are liable. French principles of civil liability and French labour law provide that legal persons are responsible for the actions of their employees and legal representatives, which covers employees and managers of employees, trade unions and NGOs. The definition of harassment as prohibited by French labour law covers actions by people in authority and that of colleagues as well (Articles 1151-1, 1152-1 and 1153-1 LC). Furthermore, it provides for an obligation on the part of the employer to guarantee a safe work environment free of harassment (Article 1152-4 LC). This provision creates an obligation on the part of the employer to take all necessary measures to put an end to harassment in the workplace. In the public services the same principles apply. If the employer is not the perpetrator of the harassment, he remains responsible for the employee’s health and security matters. The employer is obliged to ensure the worker’s safety and failure to fulfil this obligation constitutes an inexcusable fault where the employer was or should have been aware of the danger to which the worker was exposed and did not take the necessary steps to protect them. Even without fault, the employer is still responsible if harassment occurs. Harassers face may be guilty of a criminal offence punishable by up to two years’ imprisonment and/or face a maximum fine of €30,000 subject to Article 222-33-2 of the Criminal Code. ITALY Article 26 of the Code of Equal Opportunities states that ‘Sexual harassment, that is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a worker, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment’’ is also regarded as discrimination on the ground of gender. The scope of the domestic prohibitions appears to be the same as Directive 2006/54/EC. The only relevant difference is that Directive 2006/54/EC refers to ‘persons’ as being victims of sexual harassment, while Article 26 of the Code refers to ‘workers’, thus excluding any third parties present in the undertaking. Where harassment is perpetrated by an employee, the employer and the employee are liable. Since the legislative decrees are silent on the scope of liability for discrimination, the liability of those other than the individual discriminator must be established on the basis of the general principles of liability in contract and tort. In the case of a contractual relationship, such as that between employer and employee, the former is liable for the action of the latter, because there is a duty to ensure protection in the working environment. In the absence of a contractual relationship with the victim of discrimination (even in the form of harassment), the employer will be held liable in tort on the basis of the general principle of liability of the master for the acts of his servant (acts committed while performing their duties). The victim may sue the harasser before the Criminal Court seeking damages and criminal sanctions. A criminal action for sexual harassment may be brought under the general hypothesis of “harassment” subject to Article 660 of the Italian Criminal Code under which the harasser may be condemned to 6 months imprisonment or receive a fine of up to €51,600. The Italian Criminal Code further provides sanctions against cases of “sexual assault” pursuant to article 609-bis which is punishable by imprisonment ranging from 5 to 10 years. Interesting developments: The position of regional counsellor for “equal opportunities” (Consigliera di parità regionale) is a role introduced under Italian Law N. 125/1991. The regional counsellor’s specific function is to promote and monitor the effectiveness of equal opportunities (i.e. non- discrimination) in many areas, including the workplace. The counsellor has also the ability to participate as a third party in judicial claims involving discrimination and sexual harassment. SPAIN Article 7 of the Law of Effective Equality defines sexual harassment as “any verbal or physical conduct of a sexual nature, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, offensive or degrading environment”. The concept of gender-related harassment does not refer only to employment in Spain but to any aspect of life. From a criminal perspective, Organic Law 10/1995, of the Penal Code defines sexual harassment as “whoever requests favour of a sexual nature, for him/herself or for a third party, within the scope of employment, teaching or service provision, in a continued or habitual manner, and with such behavior provokes in the victim an objective and seriously intimidating, hostile or humiliating situation”. A harasser found liable under the Penal Code may face up to 1-year imprisonment or a fine ranging from anywhere between €850 – €170,000. Employers are also liable under the Penal Code for crime committed by their employees in the course of employment. Employers liable for harassment conducted by their employees on fellow staff members may be given administrative fines ranging from €6,251 to €187,515. Employers may also face further moral damages awarded to the victims. i. Ms. Nevenca Fernández case (2001) . – Mr. Ismael Alvarez was the Mayor of the municipality of Ponferreda (Castilla y León) and was convicted of sexually harassing his employee, Ms. Fernández. – The individuals initially shared a brief sexual relationship however, upon its conclusion Ms. Fernández was subjected to a series of conducts by Mr. Alvarez which affected her dignity in the work place. Ms. Fernández filed suit in March 2001 against Mr. Alvarez accusing him of grouping, humiliating public comments and sexual assault. – Throughout the trail Ms. Fernández was the subject of intensive media coverage which proved a grueling ordeal for her psyche. – Mr. Ismael Alvarez maintained throughout that he was the subject of a political lynching however, the three-court panel voted 2-1 to fine the accused and ordered him to pay damages to the plaintiff. – Although the accused avoided a jail sentence the decision was viewed as breakthrough for women’s groups as it was the first case to gain such high profile public exposure which encouraged women to report such behaviour. ii. Ms. Teresa Rodríguez case (2016) – Ms. Rodrigues, the general Secretary of a political party called “Podemos” filed a complaint against Mr. Manuel Muñoz Medina, a businessman and vocal of the Chamber of Commerce in Seville. – In 2016 the Chamber of Commerce of Seville invited Ms. Rodríguez to their Christmas celebration. Press releases state that Ms. Rodríguez went to the second floor of the building, wanting to greet both the president of the Chamber and its representatives. – In the stairway, presumably Mr. Medina lunged at her, pushing her against the wall and placed his hand over her mouth to pretend he was kissing her. – This conduct could constitute both a criminal offence towards Ms. Rodríguez’s moral integrity and a criminal offence towards a public authority, taking into consideration that Ms. Rodríguez is a public figure. – The case is being followed against the Instruction Court number 11 of Seville. Nevertheless, the sentencing has not been made public.
GERMANY Section 3 (4) of the General Equal Treatment Act and Section 3 (4) of the Law on Equal Treatment of Soldiers contains definitions of sexual harassment which are literally the same as in Article 2 (1) (d) of Directive 2006/54 with only one exception: both national laws do not continuously employ the term discrimination but Benachteiligung (putting at a disadvantage) without intending to weaken the protection as compared to the directives. In violation of Article 4(3) of Directive 2004/113, the prohibition of sexual harassment under Section 3(4) of the General Equal Treatment Act is restricted to the area of employment. The criminal offence of sexual harassment was added to the German Criminal Code in 2016 pursuant to section 184 (i) StGB. The offence of sexual harassment is now punishable by a fine or up to two years in prison. The new offence requires that offenders touch another person’s body in a sexually determined way which causes offence to the other person. Where the harassment is perpetrated by an employee, both the employer and employee may be held liable. Unlawful discrimination amounts to a breach of contract and an employee may bring a claim for damages against the employer pursuant to section 15 of the General Equal Treatment Act. Damages sought may include any material loss incurred by the employee and reasonable compensation for non-financial damage suffered. The victim also has the option to seek damages against the harasser in a civil law action.
CONCLUSION Despite the effectiveness in which the Directives were formally adopted by many Member States report a low level of awareness and often a lack of cultural acceptance for the legal protections afforded to instances of sexual harassment. There remains a sentiment and tolerance for milder forms of sexual harassment as being a characteristic of society. Often a sexism tolerant culture prevails in the workplace where strong patriarchal attitudes remain and women are not on an equal footing with men and when they do complain, they are not believed or they endure, more often than not, the negative consequences for doing so. ____________________________________________
ELAI Annual Dinner 2017
A great night was had by all at the ELAI dinner at the Westbury Hotel on 24 November generously sponsored by Keane McDonald Recruitment. Please see link to photos of the night. Noeline Blackwell of the Dublin Rape Crisis was our guest speaker and we had the pleasure of honouring Ingrid Miley and Justice Mary Finlay Geoghegan for their contribution to employment law with lifetime membership of ELAI. We also announced our second Dr. Mary Redmond bursary of €1,500 for a student essay entitled “Working in the gig economy. Does Irish employment law provide sufficient protection?” There was a fun element too with a raffle and table quiz with great prizes and all proceeds going to Dublin Rape Crisis. We also had the surprise of a comedian on the night- Colm O’Regan. Some of the Highlights: ____________________________________________
ELAI Annual Dinner, 24 November 2017
The Employment Law Association of Ireland cordially invites you to its Annual Dinner 2017 with our guest speaker and honorary member, which will take place in the
Westbury Hotel, Dublin on
24 November 2017
Our Guest Speaker is Ms Noeline Blackwell CEO Dublin Rape Crisis Centre.
Honorary member for 2017 is Ms Justice Mary Finlay Geoghegan recognition of her significant contribution to employment law.
Date Friday 24th November Venue Grafton Suite the Westbury Hotel (entrance through Grafton Foyer) Drinks Reception 7.00pm Tickets €85.65 Dress Code Cocktail Queries Address to Danielle: firstname.lastname@example.org Bookings Purchase of tickets is by invitation through Eventbrite* please contact Danielle if you are not on invite list to purchase.
We are very grateful to our generous sponsors Keane McDonald
We look forward to welcoming you at the Westbury
Lessons to be learned on interview techniques!
Thursday 9 November 2017 Senior Associate with CC Solicitors Regan O’Driscoll appeared on Morning Ireland to discuss Minister Halligan’s ill-advised (and discriminatory) interview questions following an award made by the Workplace Relations Commission yesterday. Click Here for full article ____________________________________________
Around the World in 60 Minutes: A Rapid Fire Look at the Hot Employment Law Developments Around the World
Tuesday 7th November 2017, Washington DC, 6:00 – 8:00pm EST
CC Solicitors and our Innangard colleagues across Europe and China are delighted to participate in the International Employers Forum event on Tuesday 7th November in Washington DC, 6:00 – 8:00pm EST.
The panel will cover:
- The new employer-friendly changes to employment law in France introduced by President Macron
- Termination of Employment Contracts in China
- CATEXIT: what are the implications for employers if Catalonia breaks away from Spain?
- The developing impact of Brexit for multinational employers in the UK
- Whistleblowing in Ireland – the consequences of a protected disclosure
- The new focus on Smart Working in Italy
- William D. Wright – Fisher Phillips (United States)
- Jingbo (Jason) Lu – River Delta Law Firm (People’s Republic of China)
- Colleen Cleary – CC Solicitors (Ireland)
- Anna Cozzi - Daverio & Florio (Italy)
- Juan José Hita Fernandez – Fornesa Abogados (Spain)
- Sarah Chilton – CM Murray LLP (United Kingdom)
- Mathilde Houet Weil – Weil & Associés (France)
When: Tuesday, November 7th 2017 from 6pm to 8pm EST Where: Cosmos Club Washington DC, 2121, Massachusetts Ave, NW Washington DC. Cocktails and light refreshments will be served, there is no charge for this event.
International Employers Forum events focus on international trends in employment law and are a great way to expand your network while learning the latest developments. Attendees include international employment law attorneys, human resource executives, business owners and anyone tasked with managing employees. This event is sponsored by Innangard, International Employment Law Alliance, and Fisher Phillips LLP. ____________________________________________
Partnership Disputes and Statutory Protections for Partners
Sources of Partnership Law and Disputes
It may be a surprise to many, that in the absence of a written agreement between partners, the default position in Ireland in relation to the law of partnership is very much grounded in an antiquated piece of legislation, the Partnership Act 1890 (the “Act”). The Act provides that partners are entitled to an equal share of capital and profits; there is no right to expel a partner. Further, the Act does not restrict a partner from competing with the partnership following their departure. As such, it is vital that partners clearly set out the terms of their agreement by way of a Partnership Deed. Unlike many other jurisdictions, solicitors are still prohibited from trading as a limited liability company. However, following the introduction of the Legal Services Regulation Act 2015 there is a prospect of some potentially new business structures including Limited Liability Partnerships (“LLPs”). While LLPs remove personal liability of partners, its form will be limited and there is no suggestion of solicitors being entitled to run a business with the full benefits of a limited liability company. Despite a significant recession, the last four years have seen a return to growth and profitability with the trend hopefully set to continue with Brexit hopefully creating a new impetus for Dublin. As a result, there is an increase in movement of partners between firms and partnership disputes are on the rise. Any partnership dispute will require a detailed analysis of the Partnership Deed, which might contain typical clauses relating to confidential information, garden leave, non-solicitation and non-compete clauses as well as financial arrangements for departing partners. The courts have demonstrated that they will enforce restrictions relating to the non-solicitation of customers, clients and key employees. Traditionally, the courts are less likely to enforce non-compete provisions preventing a departing partner from working for a competitor. The courts are however willing to grant springboard injunctions preventing a departing partner from using confidential information to assist in the development of their new business, etc. Having said that, most Partnership Deeds are subject to arbitration and are rarely litigated in civil courts. Litigation is very high-octane and stressful for all parties involved but despite the initial exchange of legal correspondence and positioning most cases will settle and resolve without judicial interference with both partners keen to maintain their reputations.
Statutory Protection for Partners
i. Gender The Employment Equality Act 1998 (as amended) prohibits discrimination on 9 grounds including, but not limited to, gender and age, and can result in compensation of up to 2 years’ gross remuneration being awarded. Gender disparities in law firms is topical at the moment garnering both media and political attention globally. In the US, the National Association of Women Lawyers and the NAWL Foundation reported in 2015 that 30 out of the 200 firms researched showed that a ty pical female partner earned 80 percent of what a typical male partner did. Interestingly, there has been a string of recent US law suits filed by female partners against their own firms alleging that they are paid less than male counterparts with comparable or inferior performance and that they weren’t given the same mentoring or promotional opportunities from early in their career. The gender pay gap in Ireland stands at 13.9%, with the average bonus gap being 50% and is significantly higher in the top earners.
The Department of Justice and Equality has invited interested bodies, including the Employment Law Association of Ireland to participate in a public consultation to suggest measures to tackle the systematic gender pay gap that exists in Ireland.
ii. Age Regarding retirement age, a compulsory retirement age may be set provided the employer has a legitimate aim for doing so and it is proportionate and appropriate. Some of the large law firms have a retirement age of 55 on the basis that this policy allows younger partners to come through. However, while this might be a legitimate aim, it may not be proportionate and is subject to challenge in circumstances where it is not justified to force a partner to retire at 55 if they had only been made an equity partner at age 45-49.
The most significant aspect of a discrimination claim is that it can be used as a negotiating tool and means that, even in the context of a settlement, a payment can potentially be paid tax efficiently as damages.
iii. Whistleblowing There are other statutory protections for partners that may be of relevance in the context of such a dispute. Partners enjoy whistleblowing protection under the Protected Disclosures Act 2014, due to the broad definition of “worker”. A protected disclosure is the disclosure of a ‘relevant wrongdoing’. A relevant wrongdoing include a person that has failed, is failing or is likely to fail to comply with any legal obligation (other than an obligation arising from the partnership deed or other contract to perform work or services) or that the health or safety of any individual has been, is being or is likely to be endangered. The 1 disclosure may be made to either the worker’s employer or to a ‘prescribed person’.1
The aforementioned legislation protects the worker from civil suit and prohibits penalisation resulting from making a protected disclosure. Injunctive relief can be sought where a partner is suffering detrimental treatment from the firm as a result of a protected disclosure being made including expelling a partner, reducing their profits or adverse treatment. Where a claim is upheld, significant financial compensation may be awarded of up to five years’ gross remuneration.
If you have a potential dispute relating to partnership law or believe you have been discriminated against and wish to discuss matters, feel free to contact the team at CC Solicitors. Footnote: 1 The Minister for Public Expenditure and Reform may order prescribed persons to be the appropriate recipient of a protected disclosure. By virtue of S.I. No. 339/2014, prescribed persons include the Data Protection Commissioner, the Registrar of Companies and the Director of Corporate Enforcement. A Disclosure may also be made to a Minister or legal advisor in appropriate circumstances. The contents of this briefing note are for general purposes only and does not constitute legal advice or give rise to a lawyer/client or professional advisor/client relationship. Specialist employment law advice should be sought in specific circumstances. ____________________________________________
Pre-Screening employees from an Irish Perspective
In September 2017, the Workplace Relations Commission (the main employment adjudication body in Ireland) criticised a State body for requiring a photograph of job applicants in advance of interviews as potentially discriminatory on a number of grounds. The State body argued that the practice was a pre-screening tool used to prevent personation (someone assuming the identity of another person with the intent to deceive). The Adjudication Officer warned that “surely in this day and age there are ways of preventing personation which are less open to allegations of prejudice.” Pre-screening is a term used to describe vetting processes used by employers to satisfy certain occupational requirements or pre-contract conditions. In Ireland, certain pre-conditions of employment are quite common for example, satisfactory qualifications and employment references. However, other pre-screening practices such as drug taking and criminal checks (unless working with vulnerable persons) less so. While there is no specific legislation governing pre-screening practices in Ireland, the area is governed generally by equality and data protection legislation, together with the individuals constitutional right to ‘bodily integrity and privacy’. The current position is a balance of rights of the individual and the interests of the employer.
A. Sources of Pre-Screening Governance
1. Data Protection and the Right to Privacy in the context of Pre-screening An individual’s right to privacy is a personal right enshrined by the Constitution and further protected by the Data Protection Acts 1988 – 2003 (the “Acts”) and employers should be mindful of this during the pre-screening process. The Acts restrict the collection, processing, keeping, use and disclosure of personal data. The area is due an overhaul in May 2018 when the European General Data Protection Regulations (the “GDPR”) come into force. In essence, the GDPR will introduce stricter requirements when processing data and increased financial risks if there is a breach with higher administrative fines and where data subjects can pursue damages for non-pecuniary loss e.g. loss to reputation or stress. Historically, as part of the vetting process, employers required employees to make a data access request for their criminal records to the Gardaí (Police) and to provide the employer with a copy of the documents. This practice of forced data access request has since been prohibited by section 4(13) of the Acts. Furthermore, prior to collecting any data the employer must have a lawful basis for doing so (which may be in pursuance of a legitimate interest of the employer) and so the relevance of the data to the position will become more prominent when collecting information. The GDPR also provide that a data processor shall not retain data for longer than is necessary (discussed further below). The GDPR will essentially enhance an individual’s right to privacy. Probably more concerning from an employer’s perspective is the risk of civil suit for non-material damages and/or increased fines where there is a breach of the GDPR. Whereas the current position allows for damages only where there is material loss, the GDPR will allow individuals to sue for non-material loss such as stress or damage to reputation which may lead to increased litigation. Employers also risk higher administrative fines as a result of a breach with fines up to €10M or 2% of turnover, whichever is higher, for serious breaches or up to €20M or 4% of turnover, whichever is higher, for very serious breaches. (Currently the maximum fine is €3,000 on summary conviction and €100,000 on indictment together with an order to erase the data in breach of the Act) 2. Discrimination in the context of Pre-screening The Employment Equality Acts 1964 – 2015 (the “EEA”) specifically governs the employment relationship and prohibits discrimination on nine grounds: gender, civil status, family status, race, sexual orientation, religion, disability, age and membership of the Traveller community. Under the EEA, an employer’s duties will apply to employees as well as to candidates and this will include an obligation not to discriminate when advertising the vacancy. In a high-profile age discrimination case involving an advert for Ryanair seeking a “young dynamic professional”. While Ryanair claimed that the advert meant young in spirit, the Equality Tribunal disagreed noting that all applicants were below the age of 40 years indicating that older applicants felt excluded. With that in mind, an employer should avoid collecting information that is not relevant to the job and that may expose them to an equality claim at all stages of the recruitment process. Prior to collecting the data employers should consider why they need the information and whether it is relevant to the job. Where there is a breach of the EEA, an individual who is not an employee may pursue the company for damages through the Workplace Relations Commission with a potential maximum fine of €13,000. An employee may pursue the employer on foot of a breach with maximum compensation of two years gross remuneration or €40,000, whichever is greater. In McGinn v Board of Management, St Anthony’s Boys National School, the Adjudication Officer awarded the maximum compensation of two years’ gross remuneration (€117,000) plus €10,000 in compensation for stress caused to the Claimant, along with a number of other orders, in what she described as the worst ever claim of victimisation she has ever encountered. The Claimant applied for the principal position of the school and claimed that during her interview she was questioned about “her suitability to be appointed to the post in light of her gender”. It was also suggested to her that the appointment of a female principal to a boys’ school “would pose a problem from the role model point of view”. 3. Right to Bodily Integrity An individual’s right to bodily integrity is perhaps unique to Ireland. It is an unenumerated right (not expressly mentioned in the Constitution but has developed through case law) and guarantees a right not to have your person interfered with subject to qualification.
B. Examples of Pre-screening Practices in Ireland
1. Medical history A prudent employer should only carryout medical examinations after the offer of employment has been made to avoid any allegation of discriminatory decision making. As stated above, the EEA prohibits discrimination on the grounds of disability and where an employer is on notice of an candidates disability and puts an employer on notice of any disabilities/illness and thus expose them to a potential equality claim where the candidate is unsuccessful. If this does occur, an employer should retain a record of their decision-making process to justify/defend a potential challenge. If it transpires post-medical assessment that the employee does have a disability, an employer must make reasonable accommodations for them to carry out their duties. What amounts to reasonable accommodation varies and the employer is not obliged to provide reasonable accommodation that would put a disproportionate burden on the employer (what amounts to a disproportionate burden would depend on the size/resources of the employer). An employer is not automatically entitled to medically assess their employees due to their right to bodily integrity and privacy. An employer should obtain the employee’s consent prior to a medical examination. The employer will also need the employee’s consent to obtain a copy of their medical records. 2. Criminal Background Checks There is no provision in Ireland to conduct criminal background checks unless the employee will be working with children or vulnerable adults. As stated above, the practice of forced data access requests has been expressly prohibited by the Acts. 3. Social Media Under the GDPR, an employer must have a lawful basis for processing an employee’s data and one such basis could be the legitimate interest of the business. The Data Protection Commissioner has noted that although processing information that is in the public domain does not give rise to data protection concerns per se, nevertheless an individual should be provided with any information from social media profiles and given an opportunity to comment on it. An employer should ideally only search information in the public domain that is relevant to the position. This should be interpreted narrowly and the employer should first consider why they require the information. The employer should also distinguish between professional and personal social media sites.
While pre-screening is a useful tool to determine whether a candidate would be a good fit there is a risk that collating information could manifest in an equality claim or breach of privacy to data protection.
- Equality claims are lodged with the Workplace Relations Commission under the Employment Equality Acts 1998 (as amended). Where the complaint is made by a person who is not an employee the WRC can award compensation up to €13,000 and/or an order that the company takes a course of action specified. Where the complaint is made by an employee the potential liability is up to 2 years gross remuneration or €40,000, whichever is greater.
- A breach of the incoming GDPR will expose an employer to civil suit with potential compensation awards for both material and non-material damages.
- Increased administrative fines under the incoming GDPR: €10M or 2% of turnover, whichever is higher, for serious breaches or up to €20M or 4% of turnover, whichever is higher, for very serious breaches.
D. Disposing of Information
Only keep information for as long as necessary for example, statutory obligations, HR requirements. Employers should not hoard info and should be aware that the more data they hold the more obligations they have. What about challenge to a recruitment decision? An employer should strike a balance between the risk of litigation and the individual’s right to privacy. Under the GDPR the burden of proof shifts to the data controller who will have to show what they did was compliant and account as to why they kept the records. The Data Protection Officer has advised that after 12 months there is no need to keep data. If a candidate becomes an employee then it is justifiable and proportionate to retain information for a longer period.
E. How to avoid legal claims
Pre-screening focuses on whether the employee is a good fit for the company. However, it may cause issues for an employer where the scope of their investigation goes beyond what is necessary to determine whether the individual is fit for the job. The risk here is that the employer may discover something about a candidate that is not relevant to the position but yet influences their selection or gives rise to an inference that it did. Essentially, there should be a level playing field for all candidates. The following guidelines will assist an employer when conducting their pre-screening process:
- Draft an objective and accurate job specification
- Appoint a properly constituted interview panel i.e. the panel should be gender balanced and properly trained
- Prepare interview questions in advance that are objective, relevant to the job and comply with legislation. Questions, interview notes and decision should be consistent
- Interview panel should keep individual note of the interview. Do not destroy interview notes!
- Interview scores should tally with the interview notes. Discretionary marks should not account for a high proportion of the overall score.
- Have a transparent recruitment process and document reasons for your decision – let the candidates know what checks you are carrying out and allow them the opportunity to comment
- Consider what information you are collecting and why you are collecting it? Is it relevant to the position?
- Obtain consent in line with the new GDPR or have a lawful basis for collating the information
- Consider outsourcing the pre-screening process
- Have clear HR guidelines on pre-screening searches
- Record the basis for your decisions. Do not discriminate!
- Do not ask medical questions until a conditional offer is made and even then, only ask medical questions where there is a legitimate reason to do so
- Do not randomly search the public domain and, if you do, give the employee a copy of the background information collated and give them an opportunity to comment
While an employer is entitled to vet candidates, the key question is what is reasonable and legitimately necessary in the circumstances and when does pre-screening go too far that it breaches a person’s rights and exposes an employer to a claim for damages. Individuals are becoming increasingly aware of their rights and employers should keep the above in mind and put policies in place to protect themselves from litigation and now very significant fines. ____________________________________________
Ireland: The changing Labor and Employment Landscape on the Emerald Isle
- Moderator: Colleen Cleary (CC Solicitors, Dublin, Ireland)
- The Hon. Ms. Justice Mary Laffoy (Justice of the Supreme Court of Ireland, Dublin, Ireland)
- Michael Doherty (Professor of Law, Maynooth University Department of Law, National University of Ireland, Kildare, Ireland)
- Bryan Dunne (Matheson, Dublin, Ireland)
This panel focused on three aspects of Irish law. The first is the Workplace Relations Commission. Established in 2015, this Commission consolidated six different uncoordinated agencies, and was the single most important institutional change in contemporary Irish work law. Before, forum shopping and multiple claims were common, because the various agencies’ jurisdiction was overlapping and not well defined. The Workplace Relations Commission is a single point of entry for all employment claims. One huge accomplishment is that the Commission hears 75% of cases within 5 months, and decisions are issued 6-8 weeks later. Procedural requirements for bringing a claim have been vastly simplified. The second aspect of Irish law covers collective bargaining and strikes. Employers have no legal obligation to bargain collectively. In 2001, a new law provided that unions can apply to the Labor Court (an industrial relations tribunal, not a formal court) to force an employer to engage with them on specified issues such as pay and grievances. The practical effect was that the Labor Court’s decisions tended to set sectoral norms. In 2007, the Supreme Court significantly restricted the scope of the 2001 Act. In 2015, a new Act gave unions an ability to bring claims to the Labor Court arguing that a particular employer is outside of sectoral norms in pay and terms/conditions of employment. Few cases have been decided under this Act so far, and many issues have yet to be decided (e.g., how are sectors defined? What does it mean to be “outside” of such norms? What evidence should be used to establish whether an employer is paying outside sectoral norms?) There is no right to strike under Irish law, but there is such a right under EU law. The third aspect of Irish law affecting employment is employment injunctions of the High Court. Interlocutory injunctions are the most common, and are temporary orders that maintain the status quo (e.g., requiring continued employment) until there is a full evidentiary hearing on the legal issue. Read more from the May Issue ____________________________________________
A receivership does not affect a subsisting contract of employment
On 29 March 2017, CC Solicitors were successful before the Court of Appeal in (Conor Brennan v Irish Pride Bakeries (In Receivership) [2015 No. 547], a case which reiterates that a receivership does not affect a subsisting contract of employment and that receivers are not endowed with different and/or additional powers to an employer in respect of employees. In her judgment, Ms Justice Finlay-Geoghegan upheld Mr Justice Gilligan’s 2015 decision High Court judgment that barred Irish Pride Bakeries (in receivership) from dismissing the Plaintiff on one week’s notice, in breach of his three-month contractual notice entitlement. Mr Justice Gilligan found that redundancy was not a valid reason to breach contractual notice entitlements. Irish Pride appealed the High Court’s decision, arguing that the Plaintiff had been “wrongly elevated… from a category of unsecured creditor to one of a preferential or super preferential.” Ms Justice Finlay Geoghegan noted that while Sections 437(2) & (3)(m) of the 2014 Companies Act empower a receiver to “engage or discharge employees on behalf of the company”, it does not confer “a power on a receiver to do anything which the company itself could not do.” She also restated the “well established” law that, in circumstances where an employment contract is repudiated, “unless repudiation is accepted by the innocent party, it does not bring the contract to an end”. The case is important and precedent setting regarding the protection of employees contractual rights during a receivership. ____________________________________________
Are Muslim women more affected by religious clothing bans?
In Samira Achbita v G4S Secure Solutions NV, a judgment of the European Court of Justice in Luxembourg has recently garnered a great deal of attention for seemingly allowing companies to ban staff from wearing visible religious symbols. In this article, we consider whether Muslim women are more significantly affected by this ruling. The claimant was a receptionist who, after three years of employment, decided she wanted to start wearing a headscarf at work for religious reasons. She was dismissed in June 2006 for refusing to take off her scarf, which her employer said was a violation of unwritten rules prohibiting visible signs of political, philosophical or religious beliefs and requiring employees to dress neutrally. The matter was ultimately referred to the ECJ, who stated that the garments could be banned, but only as part of a general policy barring all religious and political symbols. “An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination” the court ruled. While it has been suggested that the ECJ’s guidance to Belgium’s national courts constitutes an outright ban on headscarves, it is important to note that it does not go that far, in that the Court applied several provisos. In another case that was heard at the same time, Bougnaoiu and ADDH, the Court was very clear that employers will not arbitrarily be able to demand the removal of a headscarf in the absence of a systematic policy. Even so, Achbita is not an untroubling decision at a time of delicacy for Europe’s Muslim population. In Advocate General Kokott’s Opinion in Achbita, she commented that all of the information available to the Court indicated that G4S’ policy could just as easily affect a male employee of Jewish faith who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a Dastar (turban), or male or female employees of a Christian faith who wish to wear a clearly visible crucifix or a T-shirt offering the slogan ‘Jesus is great’ to work. However, there is no indication from either the ECJ’s judgment or AG Kokott’s Opinion that specific evidence in respect of potential gender discrimination was presented and/or considered, and it was not the focus of the question put to the Court. AG Kokott in her Opinion suggested that the Court might be more open to providing greater protections to more “immutable physical features or personal characteristics – such as gender, age or sexual orientation”. Arguably, the ban may in fact disproportionately affect women in the workplace, who openly display their faith by their clothes in greater numbers than men or women of other faith. This whole question may need to be considered at a further date by the ECJ, under the “gender” heading. ____________________________________________
We welcome the American Bar Association of the International Labour and Employment Law Committee to Dublin
CC Solicitors and Innangard our international employment law of specialist employment lawyer network host the Amercian Bar Association of the International Labor and Employmet Law Committee on coming to Dublin, followed by a working dinner. ____________________________________________
The Gender Pay gap in Ireland is widening
While the UK have recently brought in Regulations to address the gender pay gap in Ireland, the gap is widening. The European Commission has reported that the pay gap in 2008 was 12.6%. However, this rose to 14.4% in 2012. A more recent OECD survey has reported a gap of 16% in 2015, ranking Ireland 25th out of 33 countries in their Women in Work Index. According to the European Commission, Ireland is among only five other EU countries, which have seen a gender pay gap increase in recent years. This is despite Equal Pay legislation, which has been in place in Ireland since 1975 and places an obligation on employers to pay employees the same pay when carrying out ‘like work’ or jobs of ‘equal value’. The gender pay gap in Ireland is significantly higher in the top 10% of earners, who suffer a gap of 24.6%, while the bottom 10% of earners suffer a gap of 4%. The UK recently implemented the Equality Act 2010 (Gender Pay Gap Information) Regulations 2016, which came into effect in October 2016. This requires employers with 250 or more employees to ascertain their gender pay and bonus gap by 6 April 2017 and publish this information on their websites before 6 April 2018. The report is required to consider the average pay and bonuses received by men and women in the organisation. It must cover employees, workers and contractors. There is also a requirement to publish the number of men and women in different salary brackets in order to track career progression. However, the Regulations are limited in that:
- The Regulations only apply to the private sector.
- Reporting is voluntary and therefore cannot be enforced.
- Employers will not be penalised for non-compliance.
- Genuinely self-employed and agency workers are not included.
- the Regulations do not apply to partners of firms, such as legal, accounting, and architect’s practices.
In May 2016 the Irish government put the gender pay gap on their agenda when they published ‘A Programme for a Partnership Government’. The programme committed to “seek to promote wage transparency by requiring companies of 50 and more employees to complete a wage survey”, however no further progress has since been made. Iceland have recently become the first country officially to require gender pay equality. This law requires both public and private sector companies who employ 25 or more staff to obtain a certificate demonstrating that they pay all employees equally regardless of gender, ethnicity, sexuality or nationality. The question is whether Ireland will be next to follow in the UK’s footsteps anytime soon? The benefit of such regulations is questionable if reporting regulations are voluntary, unenforceable and exclude large sectors of the workforce such as the public sector and key high earners in legal and accountancy practices. Other commentators suggest that employers should be required to have an action plan for narrowing the gender pay gap and there should be proper sanctions for employers who refuse to publish this information. If you have any specific questions on gender pay, or indeed any other employment law issue, please feel free to contact the employment law team at CC Solicitors. ____________________________________________
Workplace Relations Committee is just not working
Change is necessary if the body is to achieve its aim of streamlining and simplifying a complex and confusing array of legal entities, writes Colleen Cleary.
DUBLIN BUS’S relationship with its employees is making headlines again this week. From avoiding strikes to increasing productivity and competitiveness, the nature of the relationship between a company’s management and staff is crucial, as is the infrastructure that exists to solve disputes that may arise between them. If you have an employment law complaint, the chances are you and your employer will find yourself at the Workplace Relations Commission (WRC). This may include a case of unfair dismissal, if you are seeking a redundancy payment, or are alleging workplace discrimination following a return from maternity leave, or have to respond to one.
As with most things, unless you are at the coalface, it can be difficult to gauge how the process will pan out until you get there. However, it seems that even legal and industrial relations advisers who have been working inside the WRC for exactly 12 months are having problems navigating it. This is an issue when still half of the people submitting complaints are unrepresented individuals, which means we have a problem with access to justice. The survey, published today, has identified significant problems with certain aspects of the WRC and a substantial level of dissatisfaction among practitioners who use it. It’s also important, because it provides the first insight into the WRC, where complaints are heard in private. The research was conducted by Dr Brian Barry, ELAI committee member and lecturer in law at Dublin Institute of Technology. An ad-hoc approach to case management, inconsistencies with adjudication rulings, and haphazard communication of decisions are all issues that were raised by the barristers, solicitors, employer organisations and trade union representatives who participated in the survey. For example, one in every two practitioners who took part in the survey believes the new two-tier system is worse than the previous one. The rulings of adjudication officers were of particular concern. Two in five are concerned with the quality of rulings, while one in two took issue with their consistency. A further three in five say the format of the WRC’s adjudication hearings are inconsistent, meaning they are unable to advise clients on the most basic issues relating to the format of a hearing. These findings are important when you contrast them to the experience in the district court or circuit court, where there are clear rules of procedure for evidence. The suggestion that this is not a legal forum and that the lack of rules provides flexibility is going the other way, causing confusion and a lack of due process. The survey also suggests problems exist with the mediation service, with one in three practitioners believing it does not have sufficient resources to meet demand. The level of discontent is interesting when one considers that the reason the system of the WRC and Labour Court was established was to streamline and simplify what was seen as a complex and confusing array of legal entities. However, it has yet to achieve this aim. If most workplace disputes are to be dealt with in the WRC, then it is vital we ensure the experience is a robust one and that both parties — regardless of the outcome — should feel they have received a fair hearing. A failure to ensure that justice prevails at the WRC will only encourage appeals to the Labour Court, which is in neither party’s interests in terms of costs.
This is a real concern. If Ireland is to be the only English-speaking country in the EU in which to do business, we should have a well-resourced adjudication system that is efficient, not to mention transparent. It must provide a forum for workers to have their employment rights vindicated and supported — rather than frustrate business — and enable both parties to deal with the dispute in hand and move on. The positive outcome of this research is that we now know precisely where some of the problems lie and steps can be taken by the Government to address them, so that the new system can work effectively and fairly for all users. Those of us operating in the WRC must be proactive about the challenges we face, not just shout from the side-lines. Looking to the lessons of the last year, we believe there is scope to achieve redress by making changes to WRC rules, and also by securing greater investment in the new adjudication system. One simple and immediate solution is to amend some of the procedures which do not require any legislative change. Only when we achieve this change will we achieve a system that is fit for purpose, one that we can be proud of and ensures access to justice for all, and one which ensures that Ireland is ready to do business. Colleen Cleary is chair of the Employment Law Association of Ireland See the article on the Irish Examiner website here. ___________________________________________________
The effect of the UK’s Uber ruling on Ireland’s ‘gig’ economy
Last week the UK Employment Tribunal refused to allow the taxi app company, Uber, the right to classify their drivers as self – employed; granting the two test claimants the status of ‘worker’. But what does this mean for Ireland? The Uber decision is an important one. There has been a recent and rapid global emergence of what is known as the ‘gig’ economy, ‘a labour market characterised by the prevalence of short-term contracts or freelance work as opposed to permanent jobs’. It has seen the development of companies such as Hailo, Deliveroo, Air BnB and Facebook, not just in Ireland but internationally. These companies provide a platform where customers can avail of a product or service online, with instant delivery to any location and with no need for a cash transaction. But who are the individuals who provide these services – Facebook is a worldwide content tool that does not create content, Air BnB is a real estate service that owns no real estate and Uber is the world’s largest taxi company that owns no taxis. UK Position A recent UK Employment Tribunal decision has seen this employment status being challenged with the Tribunal finding that: ‘It is unreal to deny that Uber is in business as a supplier of transportation services. Simple common sense argues to the contrary……..The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is…..faintly ridiculous. In each case, the ‘business’ consists of a man with a car seeking to make a living by driving it. [Uber] spoke of assisting the drivers to ‘grow’ their businesses, but no driver is in a position to do anything of the kind, unless growing his business simply means spending more hours at the wheel.’ Under UK employment legislation there are three types of employment status; employee, self – employed and a hybrid between the two, worker. The two London Uber drivers concerned in the decision were successful in arguing that they fell into this hybrid category and were therefore entitled to avail of protection in a number of areas particularly national minimum wage and paid annual leave. This status also allows them to maintain some of the benefits of a self- employed person for example flexible working hours and relevant tax breaks. The Tribunal’s decision was based on the following facts:
- Control of key passenger information and exclusion of the drivers from having access to it
- An interview and recruitment process for drivers
- Reserving ‘sole and absolute discretion’ to accept and decline bookings
- A requirement to accept bookings
- A requirement not to deviate from the set destination route without cause
- The fixation of fares
- Control in relation to the performance of duties
- Performance management and disciplinary procedures in the form of passenger ratings
- Determination of rebates without consultation
- A guaranteed earning scheme
- Acceptance of the risk of loss
- A complaints procedure
- Power to amend contractual terms unilaterally
Ireland Under Irish employment law, there are only two employment categories considered by the Courts when determining an employment relationship, that of an employee and that of a self – employed person. Consequently, if a similar claim to the Uber case was pursued in Ireland it would have to be argued that the driver was in fact an employee as a result of the structure and control of the ‘gig’ company. The definition of a self-employed person was considered in Denny & Sons v Minister for Social Welfare 1998 ELR 36 IR and the leading test in this area is now whether ‘an individual is in business in his or her own account or is under the control of the other party’. In light of this, it is clear that should a test case arise the Irish Courts are likely to determine a worker who is working for a ‘gig’ company, an employee. While some legal commentators have questioned whether Ireland’s employment categories are out of date, suggesting that the new ‘gig’ economy requires Ireland to create a category of ‘worker’, it seems the Irish Courts have already made provisions for such an employment relationship and a ‘gig’ company in Ireland could be at a higher risk of accountability than its English counterpart. ____________________________________________
Innangard News Alerts Launched
CC Solicitors are delighted to announce the launch of Innangard’s global employment law news alerts. CC Solicitors is a founding member of Innangard International Employment Law Alliance, bringing together leading employment law firms from around the world to collaborate on international and cross-border employment law and HR issues.
Click here for more information about Innangard or contact us at email@example.com. Follow us on twitter at @innangardglobal _______________________________________________________________________ AUSTRALIA: Adverse Action Claim Fails but Lack of Written Agreement Bites Employer A general manager who was dismissed for serious misconduct for making disparaging comments about the company’s directors during a potential transfer of business recently failed in his general protections claim under the Fair Work Act 2009 (Cth) (“FW Act”). Read More _______________________________________________________________________ FRANCE: French Supreme Court Holds that Documents Drafted in English and Relating to Variable Compensation are Binding on American Employees According to the French Labor Code, any document containing obligations for an employee, or provisions which are necessary for the performance of work, must be drafted in French. Read More _______________________________________________________________________ IRELAND: Schrems the Demise of Safe Harbour and the Rise of Privacy Shield Typically, when Irish businesses sought to transfer employee personal data to US based entities, compliance was usually granted provided the US entity was signed up to a “Safe Harbour” agreement. Read More _______________________________________________________________________ ITALY: Secondment of Personnel Between Group Companies Italian Labour law includes some very specific rules addressing the secondment of employees between employers. Read More _______________________________________________________________________ THE NETHERLANDS: Making Working Beyond the State Pension Age More Attractive for Employees and Employers Alike The Working beyond the State Pension Age Act came into effect in the Netherlands on 1 January 2016. Read More _______________________________________________________________________ SPAIN: Does Selection of a Group of Older Employees for Dismissal Amount to Age Discrimination? Spanish regulations prohibit age discrimination as part of the Fundamental Right to Equal Treatment. Age discrimination is a very significant issue in Spain in the selection of employees for dismissal. Read More _______________________________________________________________________ UNITED KINGDOM: Mind the Gap: UK Gender Pay Gap Regulations have Arrived One of the most talked about UK employment law developments of 2016 – the draft Equality Act 2010 (Gender Pay Gap) Regulations 2016, is expected to come into force in England, Wales and Scotland from 1 October 2016. Read More _______________________________________________________________________ The contents of this briefing note are for general purposes only; specialist employment law advice should be sought in specific circumstances. The members of Innangard are separate and independent law firms based around the world and there is no legal relationship between the firms or with Innangard. No Innangard member firm is responsible for the professional services performed by any other member firm. Innangard itself is not a partnership and does not provide any professional services, either in its own name or otherwise. firstname.lastname@example.org ___________________________________________________
CC Solicitors has moved offices
CC Solicitors has moved offices to 10 Upper Pembroke Street, Dublin 2, just opposite Dax restaurant. Please see below for a map of our new location. For all queries, please contact us by telephone on +353 1 905 8680 or by email to email@example.com or firstname.lastname@example.org
Leading Australian Law Firm Joins Innangard Global Employment Law Alliance
Following the launch of international employment law alliance, Innangard in November 2015, we are delighted to announce that Australian specialist employment law firm, People + Culture Strategies, led by Joydeep Hor, has accepted our invitation to join our alliance of leading employment law specialists from around the world. Colleen Cleary of CC Solicitors a founding member of Innangard is delighted to welcome Australian firm People + Culture Strategies into our alliance. Our new Australian member firm extends our current reach into the Asia Pacific Region with plans for further expansion and the aim of soon becoming a truly global network, and providing our clients with cutting edge employment law advice for their operations around the world”. Recognised individually for their expertise in their own country, Innangard provides the platform for its member firms to offer international clients (including in-house counsel and HR professional and their professional advisers) expert support, wherever they need it globally. Innangard is a non-exclusive collaboration of like-minded practitioners, each with significant profile in their own markets and with strong connections globally and its member firms are free to refer clients to whichever firm is best for their clients’ particular needs. Further details about Innangard can be found at www.innangardglobal.com. ___________________________________________________
Innangard – Global Employment Law Alliance Launched
We are delighted to announce the launch of Innangard, a new international alliance of employment law specialists. CC Solicitors is one of the founder member firms of Innangard and the alliance brings together leading firms from around the world to collaborate on international and cross-border employment law and HR issues. Innangard brings together firms with shared values from around the world, to provide expert advice of the highest quality resulting in the best legal and commercial outcomes for our clients. ____________________________________________
ELAI Annual Dinner 2015
The Employment Law Association of Ireland held its Annual Dinner and launch of the Dr. Mary Redmond bursary programme at The Westbury Hotel 8th October 2015. Lord Justice Elias, the honoured guest speaker delivered the ‘Dr Mary Redmond Memorial Lecture’. As Chairperson, it was an honour for our managing director, Colleen Cleary, to host this gala evening. Some of the Highlights: