Last week marked 41 years since the landmark case in Northern Ireland (Mortiboys v Crescent Garage Ltd) which established that sexual harassment constitutes unlawful sex discrimination. Ms Mortiboys, an apprentice garage mechanic, was only 17 years old when she resigned after facing sexual harassment in the workplace which her employers failed to prevent. She brought forth a claim to the Industrial Tribunal who found that Ms Mortiboys' treatment during her employment amounted to unlawful sex discrimination. This case highlighted the importance of workplace protections and the role of the Industrial Tribunal in providing justice for employees.
The law in NI has since evolved. In 2008, regulations were introduced to amend the Sex Discrimination (NI) Order 1976 to expressly prohibit sexual harassment in the workplace. Harassment is defined as actions or behaviours which have the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment and sexual harassment is when such conduct is of a sexual nature.
While there have been positive cultural shifts in what is generally considered acceptable behaviour in the workplace, incidents of harassment continue. In McFarland v Morelli Ice Cream Ltd & Di Vito (2022), the Tribunal ruled in favour of a Claimant who had been subjected to a long period of sexual harassment from a supervisor. The Claimant was awarded £20,000 and the Tribunal found that there had been a failure to properly investigate the Claimant’s grievances. Similarly, a recent settlement between Fernanda Hermosilla and the NI Human Rights Commission, concerning alleged sexual harassment at a work Christmas party, underscored the employer’s duty to take appropriate action. Ms Hermosilla asserted that her employers had failed to clearly communicate the outcome of the disciplinary investigation into her colleague’s behaviour. While no liability was admitted, the case highlighted the ongoing responsibility of employers to prevent harassment.
As with any legal issue, prevention is always better than cure. It is important to remember that employers are not liable for sexual harassment in the workplace if they can demonstrate that they took all reasonable steps to prevent such harassment from occurring. In 2024, the Labour Relations Agency and the Irish Congress of Trade Unions launched joint guidance which promotes good workplace practices and culture through training, reporting systems, comprehensive policies and continuous monitoring the effectiveness of prevention strategies.
If an employer finds themselves in an employment tribunal, proving that all reasonable steps were taken to prevent sexual harassment is the first line of defence. Employers should also be mindful not to breach the implied term of mutual trust and confidence with employees. Failure to address allegations of sexual harassment appropriately can leave businesses vulnerable to a claim of constructive unfair dismissal if an employee resigns due to such breach.
Employers have an opportunity to not only make commercially sensible decisions in ensuring they take all reasonable steps to prevent sexual harassment, but also to encourage real change by setting standards of workplace behaviour at a higher bar, creating a safer, more inclusive environment for employees.
This article was originally published in The Irish News on 4th March 2025.
Please reach out to Jenny Rankin (jenny.rankin@dwf.law) if your business requires any advice or assistance in any area of employment law.
