Employer Resources Newsletter - Dec 2023

Preparing for the End of Year Party – Key Employer Considerations

For many organisations the ‘end of year’ party is fast approaching. Such events can have so many positive benefits including increasing morale, promoting teambuilding and positive employee relations, reducing feelings of isolation and supporting mental health. Holding an event like this can foster goodwill towards the organisation, demonstrating to employees that their commitment, dedication and hard work over the year is appreciated by the organisation.

Key Considerations

As an employer, there are a number of risks to be cognisant of as you may be liable for the conduct of your employees at such an event organised by you, even when a party takes place somewhere other than the workplace. The actions of your employees at an ‘end of year’ party may potentially damage working relationships, reflect negatively on the organisation, and also may lead to complaints and/ or disciplinary actions.

In terms of considerations, it is important that you take reasonable steps to ensure that incidents at this event do not occur.  It is advisable therefore that you ensure your employees clearly understand in advance of the event the standard of conduct expected of them and that the policies and procedures set out in the employee handbook still apply at this occasion. This can be communicated via an organisational wide email, attaching key policies, and such a communication should set out clearly to your employees that should there be an incident or a subsequent allegation - these will be dealt with in exactly the same manner as if same had occurred during working hours.

Key Policies & Procedures

The key policies and procedures to reference include your dignity at work, anti-bullying, anti-harassment and sexual harassment and social media policies. Do remember that two new codes of practice; on sexual harassment and harassment at work; and on the prevention and resolution of bullying at work, were published in 2021 and 2022 respectively, so ensure that your policies and procedures are updated to reflect these. For example, the revised code of practice on sexual harassment and harassment has specifically recognised that harassment may take place via social media and that this ought to be reflected in an employer’s policy. This may be especially relevant at an event like this, to cover employees tweeting, using Snapchat, Instagram or sending pictures of colleagues via another medium. Your social media policy should be aligned with this also. 

Your attendance management policy should also be referenced, to cover employees who contemplate not attending for work the day after an end of year party and also refer to your grievance and disciplinary policies, should a case arise where there is misconduct, or an employee has a work-related grievance, arising from the event. Where the party falls on a day whereby your employees will be required to attend work the following day, you should include in the communication that an employee should not be at work under the influence of drugs or alcohol so that they do not endanger their own or another person's health and safety at work. Depending on the work your organisation does, it may be preferable to host the party at the weekend as this would ensure that employees do not need to attend work the day after the event.

If the party is out of hours, some people may have family responsibilities that prevent them attending, and therefore you should make your employees aware of the fact that they are not obliged to attend the event.

If there is alcohol to be served at the party - any free alcoholic beverages should be limited. It is advisable to be sensitive to any employee who does not drink alcohol or who does not eat certain foods and ensure there are non-alcoholic drinks available and alternative food options.

End of year parties are not the appropriate location for discussions in relation to performance, promotion, salary or career prospects. Words of encouragement and good intentions can be misinterpreted and may cause future issues. You could speak to your managers in relation to this to ensure such discussions are discouraged/ not engaged with on the night.

Whilst many staff members may refer to the event as the traditional “Christmas party”, as Christmas is a Christian celebration and not observed by every religion, it is advisable that all your employees should be made feel welcome at the event, or respected if they choose not to attend, and thus it is prudent to ensure that the event is consistently referred to as the ‘end of year’ party as opposed to the “Christmas Party”.

Despite end of year parties occurring mostly outside of the workplace, responsibility still lies with the you as the employer for the protection and safety of your employees. Therefore, do provide employees with the details of public transport routes, or taxi facilities in the area where the event is being held.

If, despite all your planning and communication efforts, there unfortunately is an incident at your event, it is imperative for all concerned that this is addressed. You have a duty of care to all your employees, and to ignore such an incident due to the fact that it occurred at an ‘end of year’ party may leave you liable should a claim arise. 

If you have concerns about planning your ‘end of year’ party or if an issue has arisen at one of your work events, our expert led team at Adare Human Resource Management would be delighted to help.  Please do not hesitate to contact us: info@adarehrm.ie.

Employee Awarded €25,000 for Sexual Harassment by Manager

Background

This claim was taken under the Employment Equality Acts. The complainant worked as an administrator for over four years. She claimed that she was exposed to consistent unwelcome comments, jokes, gestures and contact of a sexual and private nature by the general manager that caused her offence and humiliation.

Summary of Complainant’s Case

The complainant brought complaints that she had been subjected to harassment and sexual harassment in her workplace. Her evidence was corroborated by two co-workers. The complainant gave evidence that she had complained about the behaviour to the general manager himself and other staff.
 
The respondent’s bullying and harassment policy made reference to making a complaint to the management committee, but the complainant stated that she had not heard of the committee. In November 2019, following the receipt of an anonymous letter alleging sexual harassment in the office and the complainant, along with her co-worker, submitting formal letters of complaint, the respondent engaged an external investigator to investigate.

Out of 23 incidents reported by the complainant, three were upheld but these were described as inappropriate behaviour and not sexual harassment. In March 2020, the complainant appealed the findings of the report, but the appeal was dismissed in June 2020. No steps were taken against the general manager and the respondent requested the complainant to return to work with the general manager.

Summary of Respondent’s Case

The respondent submitted that it only became aware of the complaints following the receipt of the anonymous letter, in November 2019. At this point, it acted expeditiously by appointing an independent expert who conducted a thorough investigation which fully complied with fair procedures. The investigator presented a comprehensive report which reached findings which were objectively sustainable and in compliance with the law.

The general manager gave evidence that nothing in his interactions with the complainant led him to believe that the relationship was uncomfortable for the complainant. The investigator also gave evidence of her belief that there was a higher standard of proof in sexual harassment cases.

Findings

The adjudicator considered s.14A Employment Equality Acts 1998 to 2021 (“EEA”) which defines sexual harassment as unwanted verbal, non-verbal or physical conduct which is of a sexual nature. She also noted that s.15 provides that an employer is vicariously liable for any acts of harassment or sexual harassment, whether or not the employer knew about them, unless they can prove that they took steps which were reasonably practicable to prevent any harassment. In accordance with the code of practice on sexual harassment and harassment at work, the intention of the perpetrator is irrelevant. The adjudicator must consider the effect of the behaviour on the employee. Finally, in accordance with s.85A, the complainant must first prove primary facts that raise a presumption of discrimination. If the facts proven are of sufficient significance to raise such a presumption, the burden of proving that the treatment was not discriminatory shifts to the respondent. The adjudicator held that based on the evidence given a number of the incidents reported by the complainant were of a sexual nature and did fall within the definition of sexual harassment. Considering the consistent and corroborating evidence of the witnesses, the adjudicator found that the complainant’s case was credible that she was the recipient of offensive and unwelcome comments by the general manager. Accordingly, the complainant had established a prima facie case of sexual harassment.

In considering whether the respondent had a policy to prevent sexual harassment in the workplace, the adjudicator noted that it was clear that none of the respondent’s employees were familiar with the bullying and harassment policy. Furthermore, none of the people to whom the complainant raised the behaviour of the general manager were sufficiently trained to recognise the behaviour as falling under the policy and were not aware of the steps that needed to be taken. While a staff handbook was given to employees with their contract, the respondent did not provide any explanation or training on the various policies. The adjudicator held that this was unacceptable and concluded that the respondent had not established a ‘reasonably practicable’ defence.

The adjudicator also accepted the criticisms of the investigation, holding that the investigator was overly cautious and structured in her methodology and gave too little weight to the complainant’s account.

Determination

The adjudicator held that the investigator’s belief that in complaints of a sexual nature the burden of proof was the balance of possibilities but to a higher degree of probability was not correct. The adjudicator awarded compensation of €25,000, taking into account the fact that the Employment Equality Act requires employers to adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment, which did not occur here, and the fact that the complainant did make a complaint within the terms of the respondent’s policy, but nobody knew what to do about it. The adjudicator held that the comments the complainant had to endure were on the mid-scale of such behaviour and totally unacceptable in the modern workplace.

Our Commentary

This case highlights the importance of proactively dealing with allegations of sexual harassment at work, and that any investigation into such allegations is thorough and ideally carried out by two investigators, ensuring a gender balance. The investigation in this case was criticised for citing the belief that in complaints of a sexual nature the burden of proof was the balance of possibilities but to a higher degree of probability, which was not correct. Part 7 of the Code of Practice on Sexual Harassment and Harassment at Work (Statutory Instrument 208 of 2012) provides that policies and procedures should be translated so that employees can access and understand them. The failure of the respondent to provide the complainant with information and guidance that she could understand, and the failure to provide training employees and management alike regarding the policy, counteracted any defence that the respondent may have had that they took “reasonably practicable” steps to prevent the harassment occurring. Finally, complaints of this nature should be treated seriously, and proper weight given to the evidence established in assessing the burden of proof.

Statutory Sick Leave – 2024 Updates

The Sick Leave Act 2022 came into effect on the 1st of January 2023, legislating for a statutory sick pay scheme for all employees in Ireland, phased in over a four-year period.
 
Since January of this year we have seen the introduction of paid sick leave for up to 3 sick days per year resulting in the preparation of an updated policy detailing the entitlements under the Act. Organisations who previously did not make provision for paid sick leave had to ensure budgets for this provision were included in any financial planning. 

While the legislation clearly outlined an increasing entitlement for paid sick leave year on year the Minister of State for Business, Employment and Retail, announced in late November the commencement of an increased entitlement from January 1st, 2024. Effectively from this date employers and organisations must ensure the application of 5 days’ statutory sick leave for the calendar year 2024.

Organisations in the non-profit sector should commence the review and amendment of their sick pay policy for implementation and ensure the increased entitlements are communicated to all employees.

Commencement of Domestic Violence Leave

The Government recently confirmed the effective date of implementation for the new provision of domestic violence leave under the Work Life Balance and Miscellaneous Provisions Act 2023. 
 
Effective from Monday, November 27th, 2023, the legal entitlement of up to five days paid leave over a period of 12 months came into effect, making available this new statutory entitlement to all Employees affected by domestic violence.
 
To implement domestic violence leave effectively, it is recommended that employers embed this support measure within a wider organisational response to domestic abuse, outlined in a workplace domestic violence policy. Compliance with this provision of the Act means that a robust policy is put in place both capturing the legal entitlements and the organisations approach to support.

Actions

• Ensure that a policy is developed that is aligned to the legislation. 
• Consider the wider organisational response and additional supports your organisation may include.
• Ensure resources such as the referral list of supports is readily available.
• Communicate the details of your policy and the organisation response to all employees.   

If your organisation requires support, advice or guidance on developing and implementing policies and procedures, employee relations support or details of the supports provided under our Partnership Programme contact our expert-led team at Adare Human Resource Management.

Dublin Office: (01) 561 3594 | Cork Office: (021) 486 1420 | Shannon Office: (061) 363 805
info@adarehrm.ie | www.adarehrm.ie