Employers should investigate all such claims without delay – and never sweep cases under the carpet, says Jack Boyle
Monday, 9th March 2020, 6:00 am
Harassment is a word which is sadly prevalent in today’s society.
It is not just confined to the rich and famous. Hollywood tycoon Harvey Weinstein is certainly one of those accused of harassment to make regular headlines – he was last month convicted of rape and sexual assault.
Further stories have emerged since about rich and powerful men abusing their colleagues. I say “men” because it usually is men behaving badly in these cases. However, there are also cases where females are the ones carrying out the harassment.
As much as the celebrity cases make the headlines, there are incidents occurring every day involving “ordinary punters” which go unreported. The legal profession is a good example, with various surveys recording worryingly high numbers of professionals who have experienced harassment in their career. In the employment context, harassment is a pretty wide concept. It doesn’t have to be sexual. Harassment can be conduct related to race, age, sexual orientation, religion, gender re-assignment, disability or sex.
Harassment means unwanted conduct, related to one of these characteristics, let’s say 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 victim. The words “or effect” are significant because that means that a person cannot avoid liability for acts of harassment just because their intentions were good. It is generally the effect on the victim which brings an incident into focus.
Harassment is, particularly in the sexual sense, often physical contact. Of course, it does not have to involve physical acts. Spoken words can equally constitute harassment and indeed the majority of cases with which I have been involved it is words, rather than actions, at the core.
Employers should actively be taking steps to stamp out any harassment within their workplace. Not just because harassment is abhorrent and something that shouldn’t be tolerated in today’s society, but also because employers are often liable (vicariously) for any unlawful acts of their employees. That is, unless the employer can show that it took all reasonable steps to avoid the harassment from having taken place. For example, does the employer have anti-harassment policies? Does it provide regular training for staff about these policies? Does it update the policies at regular intervals and take formal action against those who break the rules? These are the types of action that employers should be taking to (1) stamp out harassment, and (2) give themselves a shot at being able to defend any claims.
As a further indicator that harassment is prevalent in workplaces, the Equality and Human Rights Commission this year introduced an 82-page guidance on sexual harassment and harassment at work. This is worth a read for any employers who don’t know where to start in relation to implementing an anti-harassment strategy.
If an individual raises a complaint about work-related harassment, and you are an employer, you should investigate this without undue delay. Don’t sweep it under the carpet, or explain it away as banter, or “that’s just Jack, he doesn’t mean anything by it”-type excuses.
Take action to reassure your workforce that you are a good employer who takes its legal obligations seriously. If you are a victim, remember that if you raise a complaint about harassment, it is unlawful for your employer to subject you to any detriment because you have complained. That would be victimisation and is a whole different topic, for another day.
Jack Boyle is a Director in the Employment Team at Blackadders