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Tabytha Cunningham | 4th January 2022

Harassment – Are you taking it seriously?


Tabytha Cunningham | 4th January 2022

Harassment – Are you taking it seriously?

Employers today are still regularly facing harassment claims. These are often situations which could have been avoided if the employer took steps to train employees and promptly investigate and address any concerns when they arose.

In this blog we look at a case regarding harassment which is all too familiar on its facts and is a useful reminder to employers of the need to take complaints of harassment seriously.

Facts of the harassment case

In brief, the harassment case involved a young and vulnerable waitress (Lucy) working in a hotel with little in the way of job security. Lucy was working on a zero hours contract and was reliant on her manager (Alex) to allocate her work. Lucy was concerned, therefore, about upsetting her working relationship with Alex.

Alex engaged in what he would no doubt describe as flirtations and harmless banter. Lucy on the other hand described it as unwanted sexual harassment. The behaviour was a mixture of sexual comments and some physical contact. The comments were the kind that take place in numerous work places and will often pass by without comment or claim.

Harassment – What is it?

The law is relatively straightforward. Harassment is unwanted conduct relating to a protected characteristic (in this case, sex) which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person.

Importantly, the victim of the harassment decides what is unwanted, not the perpetrator.

Who is liable?

If an employee harasses another employee, he or she can be personally liable. In addition, an employer will be liable for the actions of its employee, unless it can rely on what is known as the statutory (or reasonable steps) defence.

Reasonable steps defence for employers

The statutory (or reasonable steps) defence allows an employer to avoid liability in cases such as this if it can be shown that the employer took all reasonable steps to prevent the harassing employee from:

  1. doing the alleged act of harassment; or
  2. doing anything of that description.

This means that the employer in this case could have avoided liability if it could have shown that it had taken all reasonable steps to prevent Alex from committing the acts of harassment towards Lucy. The lawyer running the case had a go but was doomed to failure.

In order to try and rely on the statutory defence, employers will generally point towards a policy which prohibits harassment or bullying in the work place. It is clear, however, that just having a policy is not enough.

In this case, Lucy made a complaint to her immediate Line Manager about Alex’s behaviour. Her Line Manager, unfortunately, did not treat it seriously at all (saying it went in one ear and out of the other). Subsequently, the Manager of the hotel investigated the matter and found in Lucy’s favour (i.e. agreed that the acts complained of had taken place). However, Alex was not suspended during the process and was not even given a first formal warning for misconduct at the conclusion of the process. The matter was subsequently investigated by an HR Manager who carried out an investigation which the Tribunal described as “wholly deficient”. An appeal hearing then took place but this did not alter the outcome.

Overall, the Employment Tribunal Judge was scathing about the way the employer handled the complaint from start to finish.

In its findings, the Employment Tribunal dismissed the statutory defence put forward by the hotel. The Tribunal said that it is one thing to have policies, it is another thing for employers to implement them”. The Tribunal described the hotel’s managers as paying lip service to the policies and pointed to the fact that Alex was not suspended and that no disciplinary action was taken against Alex despite the findings.

If you take one thing from this article, it should be the sentence above in bold and italics.

It is clear that the statutory defence is rarely successful for employers. One has to question why this is? The answer is simply that employers are generally good at putting into place policies but then poor at following them up. As an employer, you should ask yourself:

  1. Have you got the right policy or policies in place?
  2. Do you regularly review this policy?
  3. Do your employees know about the policy (or is it tucked away)?
  4. Have your employees and managers been trained in connection with the policy?
  5. Does someone monitor the policy to make sure that it is followed?
  6. Do you practice what you preach and take action if the policy is breached?

In 2020 the Equality and Human Rights Commission published technical guidance for employers on preventing sexual harassment and harassment at work. The guidance highlights throughout the importance of employers training all employees, and particularly managers, on their policies. It also makes it clear that the Employment Tribunal is likely to find that it would have been reasonable for the employer to incur the cost and disruption of providing this type of training if it would have been an effective means of preventing this type of harassment.

It is also clear that this is not a one-off obligation. Training should be regularly refreshed. Employers should take heed of the Employment Appeal Tribunal’s recent decision in 2021 which found that the employer could not rely on training that had been provided 2 years prior, as it was out of date and it was clear that it had been ineffective. For further information on the implications for employers of this case please see our blog “Harassment in the workplace : the importance of equality and diversity training“.

When handling complaints regarding harassment, employers should also consider the guidance provided by ACAS which sets out best practice and ensure that they follow their own internal policies.

How much are these cases worth?

If you lose a case like this, the compensation will normally be:

  • Loss of earnings (financial loss)
  • Injury to feelings (non-financial loss)

Injury to feelings awards are banded depending on how serious the harassment is considered to be and there is some uncertainty over the banding. However, the band of awards is currently in the region of £900 at the bottom end to £45,600 at the top end. In this case, Lucy was awarded £19,500 for injury to her feelings.

Where does this leave employers?

This case is nothing new. Cases of sexual harassment happen all of the time and we will have 2 or 3 of these cases to deal with every year. Sexual conversations and jokes happen and a lot of the time the participants are happy about it and no claim is brought.

However, where the jokes or “banter” are not wanted or accepted, the employer has a problem. These cases are very difficult to defend on the basis of a contention that the behaviour was just “banter” or messing about and the behaviour was not unwanted conduct. A claimant in an Employment Tribunal stating under oath that the behaviour was unwanted will have to be challenged. It’s a tough cross examination task to put to the witness that he or she loved it really. The Employment Judge is not going to like this line of cross examination and it can lead to a higher award (as I suspect it did for the employer in this case). We look at the fine line between banter and harassment in our separate blog “Office banter or harassment?“.

Ultimately, this was an expensive exercise for the hotel in a number of respects. The award against the hotel was £19,500 and this is a lot of money on its own. However, there are numerous other expenses including the expense of a 5 day Employment Tribunal hearing. In addition, one can only imagine the amount of management time involved in dealing with the case. This also ignores the fallout in connection with employee morale and the effect this had on Lucy (who had left the hotel’s employment and had not worked again prior to the Employment Tribunal hearing, due to sickness).

If allegations of harassment are treated seriously as soon as they are made, a lot of pain and suffering can be avoided for all. Ultimately, the cost to the employer is going to be lower if it steps in at an earlier stage. But of course, the earliest stage is before any acts takes place and I would urge all employers to look at the steps that I have referred to above. An employer who can successfully run the statutory defence can also feel morally that they have done what they could to protect employees from unwanted behaviour. This is worth a lot, not just in terms of hard cash, but in terms of being a good employer.

If you would like to talk to someone about any potential harassment issues you have please contact a member of the Employment team.

You can also see what HR training events we have coming up by visiting and Events and Resources page.

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