Sexual harassment claims: employers should be prepared

Further to our articles earlier this year, it is interesting that due to campaigns such as the #Me Too campaign, sexual harassment is still getting media attention. Recently there have been parliamentary debates where those in the legal profession have given their views on the topic, such as whether 3 months is long enough as a time limit when comparing it to personal injury and contractual time limits.

It is perhaps inevitable that in the future employers are going to have to deal with complaints of sexual harassment in the workplace as the public awareness grows and with the tribunal fees having been scrapped.

What can employers do to protect their staff and also themselves?

• Harassment policy.

There are several benefits to having a policy in place. It helps to firstly send a message to your staff about what sort of behaviour will not be tolerated. It also tells your staff you care: it would tell them how to raise their concerns and with whom. Such policies must be tailored to the type and size of your business. Some larger organisations have harassment ‘champions’  or ‘buddies’ who staff can talk to about different sensitive topics before raising any concern formally with their boss. This idea does require consideration of topics such as confidentiality and what happens when a serious issue is raised. However, it highlights that there are a number of ways of putting in place a policy and procedure in your own business.

Another benefit is that a policy can not only cover sexual harassment but all kinds of harassment and bullying.

Finally, an employer is liable for acts of harassment under the Equality Act 2010 where an employee carries out the act in the course of their employment. Employers have a defence if they can show that they took ‘all reasonable steps’ to prevent the employee from carrying out the act or such acts.   By having a policy in place, which is clearly communicated to all employees and is complied with by the employer, it can help an employer show they took all reasonable steps to prevent the conduct in question.

However, do bear in mind an employer can be vicariously liable under the Protection from Harassment Act 1997 for acts of harassment committed by employees in the course of their employment. Significantly, unlike liability for harassment under the Equality Act, the 1997 Act — which imposes both civil and criminal liability — provides no defence for the employer. It only applies where there has been a course of conduct amounting to harassment and where the acts complained of took place ‘in the course of employment’.

• Training

It is one thing to have a policy and another to enforce it and make it become a reality.

By providing training you would be taking another step to try and prevent harassment in the work place. Such training can cover discreet points or the Equality Act generally but either way informs staff on what behaviour is prohibited by law and what the consequences of a breach are for them, the employer and the victim. It puts flesh on the bones of any message that your policy is trying make and it shows more of a commitment to tackling harassment in the work place.

It is always hard to predict where the next flurry of employment claims will come from; not many could have predicted the sudden increase in status claims given that the law had not changed for years. However, it is often changes in society that drive the case law (like with the gig economy), and likewise the shift in society on the issue of harassment may mean people are less likely to tolerate such behaviour in the workplace and are more willing to make a claim in the tribunal.

If we can assist with any employment matter or provide you with internal training, please contact us on 01730 268211 to see how we can help.