Employment lawyer Karen Black offers some timely advice on avoiding - and, if necessary, dealing with - sexual harassment claims following your staff party
A member of your hotel team has complained of harassment following last night's work Christmas party. He says that the incident happened at a nightclub after the party. He claims that, on hearing the Dirty Dancing remix, a female manager from another department grabbed him and insisted on a dance. Afterwards, she tried to kiss him and offered him a lift home in her car. What should you do?
An employer's duty of care extends beyond the workplace and will apply even when an event is away from office premises and outside working hours, provided that the event is closely associated with work.
Under the Sex Discrimination Act 1975, an employee can claim sex discrimination if he is the subject of direct or indirect sex discrimination and/or if he has been subject to sexual harassment.
The Employment Equality (Sex Discrimination) Regulations 2005 define harassment as both harassment "on the grounds of sex" and engaging in any form of unwanted conduct "of a sexual nature". Both types of harassment need to have the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
In order to defend an allegation, an employer must be able to show that all reasonable steps have been taken to prevent the harassment.
Going to a nightclub after the Christmas party is likely to count as an extension to work and, therefore, all laws which apply to the employment relationship will still apply. There is also a risk that you will be vicariously liable for the manager's unlawful conduct, because the visit to the nightclub is closely connected to the work Christmas party.
Take steps to protect your staff against bullying and harassment. Make sure that you have an anti-harassment policy in force and that the policy is supported with appropriate training.
No matter how trivial the complaint might sound, any allegation of sexual harassment should be taken seriously. Suggest to the employee that he puts his complaint in writing, so that you are in a position to treat it as a formal grievance. You should then write to the employee and invite him to a meeting so that you can hear the nature of his complaint first-hand. Then investigate the complaint and, if appropriate, interview the female manager. Once the investigation is complete, meet the employee again and let him know the outcome.
The outcome will either be that his grievance is upheld, in which case you should consider taking disciplinary action against the manager, or that his grievance is not upheld, in which case he might wish to appeal.
- Take full responsibility for the Christmas party and all connected events.
- Before the party, raise awareness that unacceptable misbehaviour could result in disciplinary action.
- Have policies on bullying, harassment and discrimination, and make sure that staff are appropriately trained.
- Make sure that employees know that they are never "off duty", even at work-related events.
- On receipt of the complaint deal with it sympathetically and in accordance with the grievance procedure.
If the employee successfully claims harassment, he can bring a sexual harassment claim in an employment tribunal and unlimited compensation can be awarded, depending on his financial losses and injury to feelings. He must bring the claim within three months of the incident.
In addition, you might be found to be vicariously liable under the Prevention of Harassment Act, in which case the employee would be awarded damages in the range of £500-£25,000, for distress, anxiety and consequential losses caused by the incident, as well as compensation for lost salary and benefits. He has six years within which to bring a claim.
If you are found to be in breach of contract (eg, because you had no anti-harassment policy and allowed the incident to happen), he could claim constructive unfair dismissal and be awarded up to £58,400 compensation.
Karen Black, partner and head of employment law
020 7629 7411