I’m being harassed or he is harassing me!
Employers are often confronted with these statements by disgruntled employees.
Every employer has to take every allegation of harassment extremely seriously as failure to do so could end up at a tribunal where at least in theory potential damages are unlimited –not a pleasant prospect .
So what is understood by harassment.
There are 2 definitions legally .The Equality Act says it is conduct related to a relevant protected characteristic as defined in the Act (see my website www.ukemploymentlawadvice.co.uk for a list) which has the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment –well that’s quite straightforward then isn’t it?)
However in these situations there is also the Protection from Harassment Act 1997 to consider. This make no mention of protected characteristics but merely says a person must not pursue a course of conduct which amounts to harassment and which he (she) knows or ought to know amounts to harassment. Here harassment is defined as alarming a person or causing a person distress which of course includes verbal harassment. The Act talks about a course of conduct which is taken to mean more than one act again different from the Equality Act where only 1 act was sufficient!. The protection from harassment Act has its roots in anti- stalking legislation.
Tribunals will take this act into consideration when considering harassment claim provided the claimant can show that the action complained of took place ‘sufficiently close’ to the employment however they choose to define that.
Harassment can take various forms both overt and covert and the employer has to be aware of what on the surface appears to be reasonable behaviour can in the eyes of the victim be seen as harassing behaviour e.g. blocking promotion or training or in the case of sexual harassment displaying or showing offensive material.
The employer should be aware that he/she is responsible for setting the tone and this will apply to any event organised under the aegis of the employer e.g Christmas parties or ‘away days’ or even leaving drinks when organised by the employer.
At present the employer is also responsible under section 40 of the equality act for any repeat harassment i.e more than once by a third party to an employee in a situation where the employer has responsibility e.g a waitress in a bar or restaurant.
The equality act says anything done by an employee during the course of employment is treated as if it was done by the employer and it doesn’t matter if it was done without the employer’s knowledge or approval.
Don’t despair
There is a defence which is to show that the employer took all reasonable steps to prevent employee from doing that thing or anything of that description.
The employer should ensure they can show that they
- Have a clear and unambiguous anti harassment policy in place
- have trained their employees and managers in accordance with this policy
- repeat the training i.e it is not a one off event but is repeated at regular intervals
- have a zero tolerance to harassment
- treat all accusations consistently
For further help and advice or to update your policy please contact me on 0789697172 or at mnewman@ukemploymentlawadvice.co.uk
Michael Newman