Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002

• Date: 08 March 2002
• Statutory Instrument No.: 78/2002

WHEREAS the Equality Authority has prepared under sub-section (1) (as amended by paragraph (g) of the Schedule to the Equal Status Act 2000 ) of section 56 of the Employment Equality Act 1998 (No. 21 of 1998) a draft code of practice on sexual harassment and harassment at work;
AND WHEREAS the Equality Authority has complied with subsection (2) of that section and has submitted the draft code of practice to the Minister for Justice, Equality and Law Reform;
NOW THEREFORE, I, John O'Donoghue T.D., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by subsection (3) of that section order as follows: 1. This Order may be cited as the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002. 2. The draft code of practice submitted by the Equality Authority, the text of which is set out in the Schedule to this order, is declared to be an approved code of practice for the purposes of the Employment Equality Act, 1998 .
SCHEDULE CODE OF PRACTICE ON SEXUAL HARASSMENT AND HARASSMENT AT WORK
S39 EE Act. S39 ES Act.	The functions of The Equality Authority under the Employment Equality Act 1998 (EE Act) and the Equal Status Act 2000 (ES Act) include:
—working towards the elimination of discrimination in employment and in relation to matters to which the ES Act applies
—the promotion of equality of opportunity
—the provision of information on the working of both Acts
—keeping under review the working of the EE Act and the ES Act and whenever necessary to make proposals to the Minister for Justice, Equality and Law Reform for the amendment of those Acts.
References in this code to the EE Act should be taken to mean the Employment Equality Act 1998 .
References in this code to the ES Act should be taken to mean the Equal Status Act 2000 .
References to the appropriate sections of these Acts are given in the margins.
S56 EE Act Paragraph (g) of the Schedule to the ES Act.	Within these functions the Equality Authority may prepare codes of practice in furtherance of the elimination of discrimination and the promotion of equality of opportunity. Section 56(4) of the EE Act as amended by paragraph (g) of the Schedule to the ES Act provides that:
“An approved code of practice shall be admissible in evildence and, if any provision of the code appears to be relevant to any question arising in any criminal or other proceedings, it shall be taken into account in determining that question; and for this purpose “proceedings” includes, in addition to proceedings before a court and under Part VII or under Part III of the Equal Status Act 2000 , proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Director and a rights commissioner”.
What follows is a code of practice within the meaning of section 56(1) and (4) of the EE Act as amended by paragraph (g) of the Schedule to the ES Act.
(1) FOREWORD
The impact of sexual harassment and harassment.	Sexual harassment, and harassment on the eight discriminatory grounds, pollutes the working environment and can have a devastating effect upon the health, confidence, morale and performance of those affected by it. The anxiety and stress produced by sexual harassment and harassment may lead to those subjected to it taking time off work due to sickness and stress, being less efficient at work or leaving their job to seek work elsewhere. Employees often suffer the adverse consequences of the harassment itself and the short and long term damage to their employment prospects if they are forced to forego promotion or to change jobs. Sexual harassment and harassment may also have a damaging impact on employees not themselves the object of unwanted behaviour but who are witness to it or have a knowledge of the unwanted behaviour.
There are also adverse consequences arising from sexual harassment and harassment for employers. It has a direct impact on the profitability of the enterprise where staff take sick leave or resign their posts because of sexual harassment or harassment. It can also have an impact on the economic efficiency of the enterprise where employees' productivity is reduced by having to work in a climate in which the individual's integrity is not respected.
Some specific groups are particularly vulnerable to sexual harassment and harassment as there may be a link between the risk of sexual harassment or harassment and the recipient's perceived vulnerability — such as new entrants to the labour market, those with irregular or precarious employment contracts and employees in non-traditional jobs.
(2) INTRODUCTION
This code has been prepared by the Equality Authority with the approval of the Minister for Justice, Equality and Law Reform and after consultation with IBEC, ICTU and other relevant organisations representing equality interests.
Aim.	This code aims to give practical guidance to employers employers' organisations, trade unions and employees on:
—what is meant by sexual harassment and harassment in the workplace
—how it may be prevented
—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.
Status.	The code thus seeks to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected.
The provisions of this code are admissable in evidence and if relevant may be taken into account in any criminal or other proceedings before a Court, under Part VII of the EE Act, proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Director of Equality Investigations and a rights commissioner.
This code does not impose any legal obligations in itself, nor is it an authoritative statement of the law — that can only be provided by the Office of the Director of Equality Investigations, the Labour Court and the Courts. It is the employer's responsibility to ensure compliance with the EE Act and European equality law.
Application and adaptation of the code.	The code is intended to be applicable to all employments, employment agencies and trade unions, employer bodies and professional bodies that are covered by the EE Act. Employers are encouraged to follow the recommendations in a way which is appropriate to the size and structure of their organisation. It may be relevant for small and medium sized enterprises to adapt some of the practical steps to their specific needs. Any adaptations that are made however, should be fully consistent with the code's general intention.
An employer shall be legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless the employer took reasonably practicable steps to prevent sexual harassment and harassment from occurring and to reverse the effects of it and to prevent its recurrence. Employers who take the steps that are set out in the code to prevent their employees from committing acts of unlawful sexual harassment or harassment or to reverse the effects of it and to prevent its recurrence, may avoid liability from such acts in any legal proceedings brought against them.
It is essential that employers have in place accessible and effective policies and procedures to deal with sexual harassment and harassment. These measures should be agreed by the employers with the relevant trade union or employee representatives. In so far as practicable, clients, customers and business contacts should also be consulted.
Equality of opportunity.	A policy on sexual harassment and harassment at work is an integral part of equal opportunities strategies in the workplace. Such policies will be more effective when operated in conjunction with similar policies on equal opportunities and health and safety.
(3) EMPLOYMENT EQUALITY ACT 1998
The Law and Employers' Responsibilities. S8 EE Act.	The EE Act prohibits discrimination on the nine specific grounds set out below in all aspects of a person's employment from:
—Access to employment
—Conditions of employment
—Training or experience
—Promotion or regarding
—Classification of posts
—Vocational training
—Equal Pay
—(It may also apply in certain circumstances when the relationship has ended for example to references).
The Act applies to employers, employment agencies, trade unions, employer bodies and professional and trade organisations.
An employer must not treat an employee less favourably due to their:
Discriminatory grounds.	Gender — man, woman (this also includes transgender).
Marital Status — single, married, separated, divorced or widowed.
Family Status — responsibility as a parent or as a person in loco parentis in relation to a person under 18, or as a parent or the resident primary carer of a person over 18 with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis.
Sexual Orientation — heterosexual, bisexual or homosexual.
Disability — this is very broadly defined in the Act and will include the vast majority of disabilities.
“Disability” means—
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour.
Age — between the ages of 18 and 65 (or from 15 in relation to...