A number of recent cases have highlighted the problem of harassment and bias in the workplace and the risk faced by employers of claims by employees.
Our next training session on 23 October 2019 will consider employers’ liability for harassment claims, how to prevent bullying and harassment in the workplace and avoiding unconscious bias. We’ll look at a case study as a practical example of how harassment can arise and guide employers through the process for addressing formal complaints.
Frequently asked questions
The term harassment is widely used, however, in order to bring a claim for harassment the employee must demonstrate the legal definition of harassment has been satisfied. This is where an individual engages in unwanted conduct which has the purpose or of effect of either violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. Crucially this behaviour has to relate to a characteristic which is protected under the discrimination rules, for example, disability, sex or age. This includes action due to a perceived characteristic, for example an incorrect perception that someone is gay, and a person’s association with someone with a protected characteristic, for example that they have a disabled child.
Sexual harassment is also protected, which occurs when an individual engages in unwanted conduct of a sexual nature that has the same effect.
There is no need for the conduct to be directed at that employee, or for the employee to have made it clear that the conduct is unwanted for it to amount to harassment.
Crucially for employers, any act of harassment done by an employee in the course of their employment is treated as having also been done by the employer. This means the starting point is that the employer will be liable for their employee’s actions, even if they did not condone or were unaware of these.
The good news is that employers have a defence if they can show that they took all reasonable steps to prevent the employee from doing that act, or from doing anything of that description. This is a relatively high hurdle. The reasonable steps expected of an employer would usually include implementing effective equality and diversity and anti-bullying and harassment policies, providing training to all staff and acting quickly when allegations of harassment are raised.
Employees should also be aware that they can be personally liable for harassment claims.
Unfortunately for employers, employer’s liability for acts of harassment can extend to actions taken by employees outside of work time, provided there is a sufficient connection to work. For example, an employer would usually be liable for sexual harassment that occurs during a work party or social event. Employers could also be liable for comments made on social media by one employee to another, if their connection is due to their work relationship.
When defending harassment claims, employers often argue that the comments made were made in the context of friendly banter between employees, which was commonplace in the workplace and did not in fact offend the employee, or couldn’t reasonably be taken by them to offend.
This angle of defence can be successful if proven. For example in one recent case for harassment connected to race and disability, the employee was subject to various offensive comments made on the basis of his weight, background and hair colour. The Employment Tribunal decided that the employer’s office was one where teasing and banter was common. Indeed, the employee had been previously warned for making similar comments to other colleagues. The Employment Tribunal acknowledged that the behaviour appeared to be accepted and treated as normal within the office and by the employee, and the employee was unsuccessful.
However, employers ideally wish to be avoid being in the position of relying on an atmosphere of office banter to defend claims and of course this will not succeed in cases of clearly inappropriate and unwanted comments.
The starting point is to have up to date and comprehensive Equality and Diversity and Anti-Bullying and Harassment policies in place. Employers then need to demonstrate that they live by these policies in practice. As a minimum this should include equality and diversity training for all employees, and specific training for those in management positions. Employers should also demonstrate that employees are encouraged to raise concerns where they arise, and that these are investigated and dealt with appropriate, for example via the employer’s disciplinary and grievance procedures.
Training should include guidance for employees as to the right line between friendly banter and harassment, including specific examples of what could amount to harassment, even if unintended to be offensive.
If you would like to join us at our practical training session on 23 October 2019 to explore these issues in more detail, please contact Sophie Warren to book your place.