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€150,000 awarded to Care Workers subjected to Sexual Harassment in a Nursing Home

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Ireland

Three care workers alleged that the nursing home ignored their complaints of alcohol fuelled verbal and physical sexual harassment by a resident over several years. The Workplace Relations Commission ("WRC") held that the nursing home failed to put appropriate measures in place to stop the sexual harassment occurring or to reverse its effects and that the care workers were victimised and penalised for making a complaint. The WRC ordered the nursing home to pay the care workers €50,000 each and to provide sexual harassment training to management.

Care Workers told to "Grow up" and "Get on with their Work"
 
The resident in question was suffering from dementia. At the time of the incidents, his care plan outlined that he makes inappropriate comments when consuming alcohol and required that two staff members are present at all times. However, despite his challenging behaviour, the resident attended the pub and drank alcohol almost every day.
 
The care workers alleged that they made a number of complaints to management relating to alcohol fuelled verbal and physical sexual harassment. However, the nursing home failed to take any effective steps to create a safe place of work. The care workers complaints were effectively ignored and they were repeatedly told to "grow up" and "get on with their work".
 
On 7th January 2018, the care workers were attempting to provide care to the resident when he used foul and sexually abusive language towards them. During this incident he also sexually assaulted one of the care workers.
 
The care workers called the Clinical Director of the nursing home to the room for support. However, the Clinical Director told the care workers to "get on with it". It transpired that the Clinical Director had given the resident alcohol that morning and it was only after this incident that a monitoring system was put in place relating to his alcohol intake.
 
Surprisingly, in response to the incident on 7th January 2018, the Clinical Director made a complaint of malpractice against the care workers who were suspended two days later and ultimately dismissed. The nursing home refused to investigate the allegations of sexual assault and insisted that they were "implausible and far-fetched".
 
What is Sexual Harassment?
 
Sexual harassment is defined as any form of verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
 
Section 14(A)(2) of the Employment Equality Acts 1998 – 2015 ("EEA") provides a defence for employers where they can prove that they took such steps as were reasonably practicable to prevent the sexual harassment from occurring and in circumstances where the sexual harassment has occurred, it took steps to reverse its effects.
 
What did the WRC say?
 
The WRC recognised that the nursing home had to balance its obligations to the resident and its employees. However, it found that the nursing home's sole focus was on the resident at the expense of the care workers.
 
The WRC stated that it was irrelevant that the resident did not intend to harass the care workers and the key question was whether the conduct had the purpose or effect of violating the care worker's dignity and creating an intimidating, hostile, degrading, humiliating or hostile environment.
 
The WRC did not accept that the nursing home was not aware of how bad the resident's behaviour was as it was clearly documented in his care plan. While the nursing home had a 'Personal Harassment Policy and Procedure' in place, the WRC criticised the nursing home for failing to provide training or information sessions to employees in relation to sexual harassment. As such, the WRC concluded that the nursing home could not rely on the defence in section 14(A)(2) of the EEA.
 
The WRC ordered the nursing home to pay each care worker €50,000 which included an award for victimisation and penalisation in retaliation for making a complaint of sexual harassment. The WRC also ordered that all staff with management functions receive harassment and sexual harassment training.
 
Top Tips for Employers
 
This case is a timely reminder that employers can be liable not just for the conduct of other employees but customers as well.
 
Employers must provide a safe place of work and should conduct a risk assessment to identify any risks to the safety, health and welfare of its employees.
 
In relation to sexual harassment, it is well established that the minimum requirement for employers is to have an adequate anti-harassment or dignity at work policy in place that is effectively communicated to all employees. Ideally, employers should also provide training or information sessions to employees relating to sexual harassment.
 
Employers should investigate all allegations of sexual harassment. In circumstances where sexual harassment has taken place, employers should offer supports to employees such as counselling or paid leave and should put appropriate measures in place to prevent a reoccurrence.
 
 
 Written by Maeve Griffin and David Murphy

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