The problem A waitress resigns from her job, giving no indication why. Two months later her former employer gets an employment tribunal claim which alleges that she was sexually harassed by the former employer's chef; that the former employer failed to protect her; and that she had no choice but to resign.
The employer is now facing a claim of constructive dismissal and sexual discrimination.
The law Employers have a duty to protect their employees from various forms of harassment. In the case of sexual harassment - that is, unwelcome behaviour (either verbal or physical) of a sexual nature which violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment - the duty extends to ensuring that employees are protected from the comments and actions of other employees.
Sexual harassment can take many forms and is not restricted to unwelcome physical contact. It can include inappropriate or suggestive remarks; comments in relation to how someone looks; pornography displayed in the workplace; lewd jokes sent round by e-mail, etc.
To defend a claim of harassment, the employer has to be able to show that it has taken all reasonable steps to prevent the harassment happening. Training the workforce is an important aspect of establishing such a defence.
Expert advice This particular situation was highlighted recently in an employment tribunal case where it was held that a chef at an exclusive members' club in London had sexually harassed a waitress. The chef was said to have walked around the kitchen dressed in only his underpants, and was said to have repeatedly subjected the waitress to crude questions about her sex life.
The waitress was awarded £124,000 in compensation.
One of the important factors taken into account in this case was the bullying and humiliating atmosphere which was evident in the kitchen. Such an atmosphere can, of itself, amount to sexual harassment, as can a "laddish" culture or banter in the workplace.
Bear in mind that what is not offensive to one person can be offensive to another. What does and doesn't amount to sexual harassment will largely depend on the effect it has on the individual in question.
An employer can therefore find itself guilty of having failed to protect an employee from sexual harassment if it is aware, or should have been aware, of such an environment existing, or if it failed to take appropriate steps to ensure that such an environment did not exist - for example, through training and by having clear anti-harassment policies in place.
- Be aware of the type of behaviour which can amount to harassment. Current legislation protects employees from harassment on grounds of their sex, race, sexual orientation, religion or disability - and, from October 2006, age will also be covered. Harassment can take the form of office banter, jokes or nicknames.
- Ensure you have clear equal opportunities policies in place which directly address the various forms of harassment, and that these are communicated to all staff.
- Make clear to all staff that harassment, on any grounds, is unacceptable and disciplinary action will be taken.
- Make sure managers and supervisors understand their responsibilities under your equal opportunities policies to recognise and eliminate harassment.
- Ensure that employees know the procedures for lodging grievances and complaints.
- Ensure that any complaints are treated seriously, investigated fully and dealt with sensitively.
- Remember that sex discrimination legislation applies to both men and women.
Beware! Compensation awards in cases of discrimination are unlimited, and the £124,000 award made in the case above is no longer considered excessive.
You must also recognise that employers may also be held liable for the behaviour or acts of third parties, such as customers, if it is reasonably foreseeable that such behaviour could take place and that nothing was done to prevent it.
Dundas & Wilson CS