Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012

• Jurisdiction: Ireland
• Citation: IR SI 208/2012
• Year: 2012

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 19th June, 2012.

I, ALAN SHATTER, Minister for Justice and Equality, in exercise of the powers conferred on me by sections 56 (3)(a) and 56 (5) of the Employment Equality Act 1998 (No. 21 of 1998) (as adapted by the Justice and Law Reform (Alteration of Name of Department and Title of Minister) Order 2011 ( S.I. No. 138 of 2011 )), hereby order as follows:

1. This Order may be cited as the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.

2. The code of practice, which was prepared by the Authority and submitted to me, 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 (No. 21 of 1998).

3. The code of practice, declared to be an approved code of practice in Article 2 of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 ( S.I. No. 78 of 2002 ), the text of which is set out in the Schedule to that Order, is revoked.

4. The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 is revoked.

SCHEDULE

CODE OF PRACTICE ON SEXUAL HARASSMENT AND HARASSMENT AT WORK

S39 Employment Equality Act S39 Equal Status Act. The functions of the Equality Authority under the Employment Equality Act 1998 and the Equal Status Act 2000 include: — Working towards the elimination of discrimination in employment and in relation to matters to which the Equal Status 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 Employment Equality Act and the Equal Status Act and whenever necessary to make proposals to the Minister for Justice and Equality for the amendment of those Acts. Certain provisions in the Employment Equality Act 1998 and the Equal Status Act 2000 were amended by the Equality Act 2004 . References in this code to the Employment Equality Act mean to the Employment Equality Acts 1998 to 2011. References to the Equal Status Act mean to the Equal Status Acts 2000 to 2011. References to the relevant sections of these Acts are given in the margins. S56 Employment Equality Act Paragraph (g) of the Schedule to the Equal Status 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 Employment Equality Act as amended by paragraph (g) of the Schedule to the Equal Status Act provides that: ‘An approved code of practice shall be admissible in evidence 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 Equality Tribunal and a rights commissioner’. What follows is a code of practice within the meaning of section 56(1) and (4) of the Employment Equality Act as amended by paragraph (g) of the Equal Status Act. The impact of sexual harassment and harassment. PART 1: Foreword Sexual harassment, and harassment on the eight other non-gender discriminatory grounds, pollute the working environment and can have a devastating effect on 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, in addition, 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 an employee’s perceived vulnerability — such as might be the case with new entrants to the labour market, those with irregular or precarious employment contracts and employees in non-traditional jobs. PART 2: Introduction This code has been prepared by the Equality Authority with the approval of the Minister for Justice and Equality 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 admissible in evidence and if relevant may be taken into account in any criminal or other proceedings before a court and under Part VII of the Employment Equality Act, and also in proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Equality Tribunal 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 Equality Tribunal, the Labour Court and the courts. It is the employer’s responsibility to ensure compliance with the Employment Equality Acts 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 Employment Equality 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 is legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless he/she took reasonably practicable steps to prevent sexual harassment and harassment from occurring, to reverse the effects of it and to prevent its recurrence. Employers who take the steps set out in the code to prevent sexual harassment or harassment, to reverse the effects of it and to prevent its recurrence, may avoid liability for 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. The Law and Employers’ Responsibilities: S8 Employment Equality Act. PART 3: Employment Equality Act 1998 The Employment Equality Act prohibits discrimination on nine specific grounds in all aspects of a person’s employment, including: — Access to employment — Conditions of employment — Training or experience — Promotion or regrading — 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. Discriminatory grounds. An employer must not treat an employee less favourably because of their:Gender — man, woman, (this also includes transgender). Civil Status — single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved. 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 section 2(1) of the Employment...