06 Nov 2017

Sexual Harassment - Who is to blame?

On one level we know the answer to this question.  It’s the person who inflicts the unwarranted attention on the victim. However, I’m afraid the question requires a rather more considered answer than a superficial response.  It is something that employers need to think about very carefully. Not only has the world seemingly turned upside down with a raft of allegations following the Weinstein revelations, and the goings on in Westminster, the law has changed more recently, particularly as to liability for acts of sexual or any other harassment, including assaults.  As a legal adviser to a number of business, I thought it might be helpful to try to answer a number of the questions that arise. 

Who has the legal liability for an act of harassment?  It may come as a surprise to some, but in general, the employer will be liable for harassment unless it can show that it has done all that is reasonably practicable to prevent it.  It is a very well-established principle that employers are liable for negligent acts committed by employees, under the vicarious liability principle, so most employers are aware of the sobering adage that ‘you are only as good as your poorest employee’.  However, in more recent years, as reinforced through the Equality Act (2010), employers will need to show they have taken steps to prevent acts of discrimination, bullying or harassment. 

How can I protect myself as a business against claims?  In order to escape liability for (say) a sexual harassment claim, the employer will need to demonstrate that they have taken all reasonable steps to prevent it. So, the drawing up of a modern compliant policy reflecting best practice, with a robust procedure in the cases of breaches is a must.  But that is not enough.  Monitoring and training, in order to raise awareness and provide an outlet for complaints is crucial.  Interestingly, it is the absence of an outlet or reporting mechanism in the parliamentary sex scandals that has been identified as a serious problem for complainants.

What should I do if allegations of harassment are raised?
It is crucial that any complaints are thoroughly investigated. It is no longer acceptable for employers to brush it off lightly with expressions such as “It’s just harmless banter” or “tell him you are not interested” and crucially, “you’ll have to make a formal grievance but it may not help your career if you do”.  If a complaint is made, ensure that nothing less than a thorough, swift and fair investigation is carried out, with both parties and any witnesses interviewed.  This should be carried out by someone not connected to the case and who decides whether there is a case to be answered.  Their report should then go to a disciplinary panel, if a case is made out, and an adjudication should be made following the hearing.

So, what might a reasonable outcome be? 
That depends entirely on the findings of fact in the disciplinary process.  If the allegations are not substantiated, then the case against the alleged perpetrator is dismissed.  Otherwise, depending on the severity of the workplace offences, then anything from a formal warning, up to summary dismissal, must be considered.  I advocate the seeking of a legal opinion at the point any sanction is administered, because of the ramifications flowing from any decision.

If we do not deal with complaints seriously, are legal proceedings possible?  Yes, you may face a claim in the Employment Tribunal.  Harassment is a form of discrimination, and in respect of which there is no cap on compensation, and given that an element of the compensation is for injury to feelings, aggravated damages can result in a potentially financially crippling reversal for you and/or your business.

The days are gone when harassment and unwanted sexual advances can be viewed as trivial and the entitlement of an overbearing boss.  Even accusations can damage your business and your brand, and certainly your reputation. 

sexual harassment in the workplace

Do not ignore the elephant in the room and call time on sexual harassment in your organisation. 

We have released dates for our new winter 2017 training workshop on sexual harassment in the workplace. The cost is £65 + VAT per delegate for the half day course. Can you afford not to attend?  If you are unfortunate enough to face allegations, evidence of training and awareness of the law could go a significant way towards providing you with a defence, as you will argue that this becomes an example of taking a reasonably practicable step towards prevention


Nigel French