February for many is the season of love but inappropriate expressions of affection from one colleague to another can be a problematic area for Employers.
Thursfields Associate Solicitor, Jade Linton explores the law relating to sexual harassment in the workplace and the obligation an Employer has when an employee has been sexually harassed by a colleague.
The Equality Act 2010 prevents the following three types of harassment:
- General harassment
- Sexual harassment, and
- Less favourable treatment
An employer can be liable for harassment carried out by employees in the course of employment and case law is clear that ‘in the course of employment’ is not just limited to core working hours, for example; an act of harassment at a work-related social event.
For harassment which occurs during the course of employment, an employer will have a defence under the Equality Act 2010 if it can show it took all reasonable steps to prevent the alleged perpetrator from doing the alleged act. This will of course be a question of fact and an Employer facing a claim will need to supply evidence to show it had indeed taken such steps.
Even when an employer is satisfied the harassment was not carried out during the course of employment, it should be aware there could be workplace implications nevertheless. For example, the victim of the alleged harassment may be frightened to work with the alleged perpetrator, or may suffer less favourable treatment at work as a result of having rejected or succumbed to the alleged perpetrators advances. There may also be implications for other employees if the alleged perpetrator poses a risk to anyone else.
Where there is a sufficient connection with the workplace, an employer will have a duty of care towards its employees and when faced with such a scenario should consider the following:
- Discussing the matter confidentially with the alleged victim.
- Conducting an investigation under its disciplinary procedure; this should be considered even if the alleged victim of the harassment has not yet made, or does not wish to make, an official complaint.
The rights of the alleged perpetrator should not be overlooked and if disciplinary action is taken in the absence of an investigation, this may amount to a breach of trust and confidence and give rise to a claim for constructive dismissal. Depending on the nature of the harassment, an Employer may have other duties – for example, to involve the police in serious cases. However, this is outside the scope of this article.
For further advice please contact Jade Linton, Associate Solicitor, Employment on 0121 796 4024 or email firstname.lastname@example.org