It is an employer's legal responsibility to ensure their staff are protected from harassment in the workplace, but what steps can you reasonably take to prevent such behaviour? Legal expert Nicola McMahon offers practical advice.
Among the press coverage of the new airport body scanners were reports that a Heathrow worker had ogled a female employee who accidentally walked through one. The worker was issued with a police warning for harassment and subjected to disciplinary action by his employer.
This raises the issue of harassment in the workplace, where employers may find themselves liable under civil and criminal law.
Employees are protected from "harassment" within the discrimination legislation, which rules that harassment takes place where, on one of the protected grounds (sex or conduct of a sexual nature, race, disability or the disability of another person, religion or belief, sexual orientation, gender reassignment or age) an employee engages in unwanted conduct which has the purpose or effect of violating another's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The unwanted conduct may be a one-off incident or a series of actions. If the conduct in question has "the purpose or effect" of harassing the complainant on one of the prohibited grounds of discrimination it is considered harassment and is unlawful regardless of whether it was intentional or not.
As a result, a person's actions could overstep the mark before they realise, because the legislation does not enable an individual to "test the water". There is, however, a qualifying provision that an action will only have the effect of violating dignity, or creating an intimidating environment if it should "reasonably be considered as having that effect". This therefore excludes liability if the individual is hypersensitive and takes offence unreasonably.
Within the context of sex discrimination legislation, employers may be liable if they unreasonably fail to protect employees from third party harassment - for example, by clients or customers - if they know that the employee has been subject to such harassment in the course of their employment on at least two other occasions.
The Protection from Harassment Act 1997 (PHA) may also be relevant. This legislation was initially designed as a measure to tackle stalking, but has since been found by the courts to have wider application, including in the employment context. The definition of harassment in the PHA is "an oppressive and unacceptable course of conduct (more than a one-off incident) which amounts to harassment of another, and which is alarming or causes distress to the individual".
As employers are liable for the actions of their employees, it is important for them to take steps to avoid harassment taking place in the workplace.
Under discrimination legislation, an employer has a defence to a claim of discrimination or harassment brought on the basis of an act by an employee if the employer can prove that they took such steps as were "reasonably practicable" to prevent the employee from carrying out that act.
In assessing whether an employer will be able to rely on the "reasonable steps" defence, a tribunal will look at whether the employer took any steps at all, and whether there were any further steps they could have taken.
Unfortunately, the PHA does not allow for a "reasonable steps" defence for the employer. The employer may therefore find itself vicariously liable for the actions of its employees, regardless of what steps it took to prevent harassment.
- Have a harassment policy in place promoting dignity in the workplace and a no-tolerance approach to harassment
- Bring the policy to the attention of all employees
- Highlight the consequences of non-compliance to employees, including disciplinary action and personal civil and criminal liability
- Promptly address complaints of harassment and record all complaints, investigations and actions taken to monitor the effectiveness of the policy. This should clearly overlap with grievance and disciplinary policies and procedures
If an employee is able to prove that they have been harassed at work and their employer is unable to show that they took reasonable steps to prevent harassment taking place, the employer may face a potentially unlimited award in an employment tribunal.
Employers should also be aware of potential claims brought under the PHA, for which the limitation period in which employees can bring claims is six years.
Nicola McMahon, solicitor, Charles Russell LLP