Harassment, especially of a sexual nature, is something that no one ever wants to experience, but as the investigation into MP Chris Pincher groping Civil Service and House of Lords employees has shown, it is something all employers should take action to prevent.
With Mr Pincher resigning following his appeal against his eight week suspension from the Commons over his inappropriate actions, the story has recast the light on the problem which saw a great deal of attention in recent years following the rise of the “Me Too” movement.
What does the law consider ‘harassment’ to be?
Whilst harassment is a term often interchangeable with others such as ‘intimidation’ or ‘abuse’, there is in fact a more precise legislative definition.
The Protection from Harassment Act 1997 outlines harassment to be when a person’s actions make the victim feel distressed, humiliated, threatened or fearful of further violence. Invariably, the goal of intimidation is to either coerce the victim to either do something they are not obliged or want to do, or the persuade them not to something they are required, entitled or want to do.
Further to this, there are three types of harassment prohibited in The Equalities Act 2010:
- Harassment in relation to a protected characteristic;
- Sexual harassment – where a person engages in unwanted sexual conduct in order to either violate the victim’s dignity or insert the victim into an intimidating, hostile, degrading, humiliating or offensive environment;
- Less favourable treatment because an employee rejects or submits to unwanted conduct of a sexual nature or that is related to gender reassignment or sex.
Plans for reform
Further to these existing laws, the government is supporting new proposed legislation through Parliament which could result in changes to what is currently in place.
The succinctly named, Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a duty on employers to take all reasonable steps to protect employees from harassment, as well as giving employment tribunals the power to uplift sexual harassment compensation where this new duty is found to have been breached.
The Private Members Bill reintroduce employers' liability for third-party harassment and save employers from liability for the expression of certain opinions by others in the workplace.
How does this impact employers?
Tackling harassment can be a delicate matter with an array of issues around attempting to prevent it and how to manage cases that arise.
The top priority for any employer when it comes to preventing harassment needs to be protecting their employees from any such incident occurring. Any environment that allows such behaviour to endure will not only expose staff to unwanted anguish but can result in the business facing consequences.
Whilst there is a need to protect and empower victims with swift and appropriate action, there is a need for employers to also ensure there is a balance to their investigation.
What should employers do?
The two clear roles for employers in relation to harassment are to create an environment and culture that prevents harassment and, should it ever arise, to follow robust processes in investigating and addressing it.
Such an approach, the “Reasonable Steps” defence, is outlined in the Equalities Act and protects an employer from liability if they are able to demonstrate they took all reasonable steps to prevent the accused from doing their actions or anything of that description.
There are no minimum requirements that an employer can rely on to demonstrate that it has taken reasonable steps to protect its workers. However, the Equality and Human Rights Commission advises the need for well communicated anti-harassment policies that are effectively implemented, monitored and reviewed, as well as appropriate procedures for reporting harassment, protecting victims and taking subsequent action.
It is also suggested that employers provide regular training for managers and supervisors in equal opportunities and harassment issues. They should also be taking steps to deal effectively with complaints, including promptly and thoroughly investigating complaints, dealing with requests for anonymity in a fair manner and taking appropriate disciplinary action against harassers.
It should also be kept in mind that harassment is not always at the hands of employees, and may be brought about by third parties such as customers or contractors. When the Equality Act was first introduced, businesses faced three strikes before being considered liable for a lack of action to prevent third party harassment. However, when the reforms are introduced it will only require a single occasion for an employer to be held liable for third party harassment. It will therefore be prudent for employers to do risk assessments and take action wherever possible to prevent such third party harassment from occurring.
Should employers feel their processes are potentially insufficient and subject to scrutiny, or if they face potential cases of harassment within the business, they should seek legal advice straight away to support all parties to a suitable conclusion avoid potential reputational damage and costly claims.
Thrings’ Employment lawyers are experienced in dealing with business matters that affect the workforce, including workplace bullying, and has acted for both employers and employees from start-ups and SMEs all the way to multinational corporations across a wide range of employment matters. To find out how they can help strengthen your polices, and solve your disputes, please get in contact.
