As a succession of TV and radio stars face investigation and prosecution for historic alleged sexual offences, there has been much talk of past cultures of sexual harassment in the workplace. The recent trial of Dave Lee Travis is a case in point. But it’s not just the past hitting the headlines: the Lib Dems have faced criticism of their handling of allegations that Lord Rennard sexually harassed female party members.
Much of the focus of the Lord Rennard debate has been around whether or not he intended to harass party members. However, so far as the workplace is concerned, intention is irrelevant: an employee can be harassed because of the effect of a colleague’s behaviour even if the intention is benign.
An employee will succeed in a claim for harassment if they can show:
- Unwanted conduct
- Related to sex or of a sexual nature
- That has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
In deciding the effect of the conduct, a Tribunal will look at the circumstances of the case and the perception of the individual concerned before determining whether or not it was reasonable for the conduct to have that effect. Whilst an oversensitive employee may not succeed, if a reasonable person in those circumstances would be offended or humiliated, the case will be made out even when the team genuinely did not realise that their behaviour had that effect.
This being the case, what can an employer do to minimise the risk of successful claims of sexual harassment in the workplace being brought against it?
Although under the Equality Act 2010, employers can be held vicariously liable for acts of sexual harassment, the same act also provides a statutory defence if the employer can show that it took all reasonable steps to prevent its employees from harassing the individual concerned. Whilst what will be deemed as reasonable will, to a large extent, depend upon the size and resources available to the employer, the following are examples of prudent measures an employer can take:
- Implementing clear and unambiguous policies on bullying and harassment, discipline at work, and equal opportunities, setting out exactly what kind of behaviour is prohibited and the sanctions for prohibited behaviour
- Ensuring that all such policies are regularly updated and continuously monitored
- Ensuring that all employees are fully aware of the contents of the policies, and that all new recruits are made aware of the contents of the policies e.g. as part of the induction process
- The regular conducting of “refresher” courses on discrimination, including harassment and bullying, and equal opportunities in general
- Ensuring that a full, thorough and fair complaints system is in place to deal with complaints of sexual harassment, including provision for thorough investigation, confidentiality and swift action
- Conducting management training to ensure that managers know how to deal with complaints of sexual harassment in a thorough, fair and consistent manner
- Disciplinary action and sufficiently serious sanctions where sexual harassment has been found to have taken place
- Keeping a written record of all updates to policies, training and preventative measures taken.
If measures such as those listed above are implemented, the chances of an employer either avoiding a claim, or successfully defending any claim of sexual harassment, should be greatly increased. What will not be enough, however, is the implementation of a policy which is never updated, disseminated or monitored in any way. Active engagement in the process of prevention, or, where complaints have already been made, swift and fair action, is what is required.
By way of example, in the 2012 case of Assamoi v Spirit Pub Company, the Employment Appeal Tribunal confirmed that an employee was not constructively dismissed where his manager had behaved badly toward him but the actions of more senior managers in upholding his grievance and taking steps to rectify the situation prevented the circumstances escalating into a state of affairs that justified the employee leaving. Employers would therefore be well-advised to deal with complaints of sexual harassment thoroughly, promptly, and in cases where complaints are held to be well-founded, with appropriate remedial action. Such action should involve swift disciplinary action against the perpetrator involved, including the imposition of sanctions of sufficient gravity to the offences committed – usually dismissal.
As can be seen from the above, there are a number of steps an employer can take to minimise the risk of being held to be vicariously liable for acts of sexual harassment in the workplace. However, any employer facing a formal or informal complaint that an employee has been bullied or faces potentially discriminatory harassment from their colleagues would be well advised to seek help from a specialist employment lawyer to ensure that the complaint is handled in a way that minimises the risk of a claim against the business.
Louise Mankau, Senior Counsel, Prolegal