Organisations are legally liable for sexual harassment by their employees, even if the organisation itself is not at fault, a legal conference has heard.
The law on workplace bullying and harassment has developed “radically” in recent years, to the extent that, even if a company has put anti-harassment measures in place, it is still responsible for the actions of its employees, barrister and employment law expert Desmond Ryan said.
Mr Ryan was addressing the Employment Bar Association’s annual conference on the subject of recent developments in the law surrounding workplace bullying and harassment.
He noted that his presentation was “particularly relevant given recent news”, a reference to the claims of bullying and harassment made by female employees against former Gate Theatre director Michael Colgan. Mr Colgan has yet to respond publicly to the allegations.
Pressing development
“The most pressing development in relation to the recent bullying and harassment controversies at present is the really radical development in the law in the area of vicarious liability,” Mr Ryan said.
In employment law, vicarious liability, also known as strict liability, is the principle that an employer can be liable for its employee’s actions, even if the employer was not at fault in any way.
Mr Ryan explained that in the past, employees who suffered bullying had to prove their employers failed in a duty of care towards them, for example by placing them in a dangerous situation or failing to have written anti-bullying polices in place.
The wrong-doing does not have to occur in the workplace or during the victim’s normal duties for employers to be liable, Mr Ryan said. It could occur during related activities. For example, in the entertainment sector, strict liability would “almost inevitably” apply to an audition for a role during which sexual harassment took place.
Considering legal action
The developments mean employers such as the Gate Theatre could face cases in the Workplace Relations Commission or the civil courts from the women who have made claims against Mr Colgan. Several of the women who told their stories to The Irish Times have said they are considering taking legal action.
Under vicarious liability, employees who suffered harm would have to prove no such failings. They would simple have to show the harassment or bullying took place “in close connection” with their employment. This was expressly confirmed by the Irish Supreme Court this year in the case of Hickey v McGowan.
The case had the effect of substantially broadening the area in which employers are liable for their employee’s actions including in relation to sexual abuse or sexual harassment. He said that until very recently it would have been very difficult to show an employer was guilty of sexual harassment but that this has now changed significantly.
