Chipping Norton Times - Issue 26 - November 2012 (PDF)

Harassment –
how much can it cost you?
Have you ever considered that an employee could bring a claim against you because of how a customer, contractor,
supplier or member of the general public has treated them? Yes, this is how far third party harassment can extend and if
you haven't taken steps to protect your employees, or stopped the harassment, it could cost you dear!
The concept of harassment is not a new one – it has been around
for many years both in the employment arena but also in the civil
courts. However, the Equality Act in 2010 added a very wide
statutory definition of harassment in relation to illegal
discrimination or the ‘protected characteristics’ as they are now
called. This covers religion or religious belief, sex and sexual
orientation, race, disability and age. However harassment
doesn’t apply to pregnancy, maternity, marriage and civil
partnership. The Act specifically deals with sexual harassment
with further detail. Harassment claims outside of these areas can
still be brought in other courts but not in the Employment
Tribunal.
The coalition government announced in March 2011 that they
deemed these provisions in the Equality Act "unworkable" but
despite assertions to remove them, they are still there nearly a
year on!
What does it actually mean for employers and employees looking
to bring a claim? It gained prominence with the case of Bernard
Manning who made racist and sexist jokes about some waiting
staff in a hotel in 1997. The staff bought claims against the hotel
and succeeded, even though the person causing offence was not
an employee. This legal principle of third party harassment, a
primarily European driven concept, has latterly been extended
and firmly embodied in the Equality Act 2010.
The legal definition of harassment is 'unwanted conduct related
to a relevant protected characteristic, which has the purpose or
effect of violating an individual's dignity or creating an
intimidating, hostile, degrading, humiliating or offensive
environment for that individual'.
What counts as harassment is very wide ranging from a joke or
flirting through to the more extreme, such as assault. It even
covers those who just overheard the alleged harassment even
though they weren’t the subject of it! Even if everyone else
thought it was harmless, that is no defense, it's a subjective test
and so it is how the victim viewed it that matters.
Section 40 of the Equality Act 2010 details when an employer
will be liable for the harassment, which is effectively a threestage
test. Firstly, the person must have harassed the employee
during the course of the employee’s employment.
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Secondly, the employer didn’t take reasonable steps to stop it
and thirdly, that the employer knew the harassment had
occurred at least twice.
‘dealing with allegations can be very problematic ~ but that
doesn’t mean they can be ignored’
It’s an incredibly difficult area, as employees might not directly
disclose the first incidence or indeed multiple incidents of
harassment so the employer may not be fully aware of it. It may
not be until matters are properly investigated that the full extent
of the harassment and the employer’s liability are known. How
does an employer deal with the third party who has carried out
the harassment if for example it is their biggest client or buyer
etc. and they deny it? Further, how do you protect someone who
is maybe not office based for example a sales representative. The
realities of dealing with such allegations are very problematic
but that doesn’t mean they can be ignored!
Indeed, particular care should be given at social events, such as
client days or marketing events that are still work related. These
are often the sorts of occasions where alcohol is involved and the
usual professionalism can lapse!
What can you do as an employer to protect yourself? The first
thing is to make sure that you have a clear harassment policy,
often as part of an equality and diversity policy. Then use it. It's
no point having it if it is never used. Make sure staff are aware of
it and encourage an open door policy so employees feel they can
raise such issues if they occur. Then act quickly. Don’t wait for a
second allegation of harassment, act on the first. Speak to those
who are most at risk and make them aware that you will not
tolerate anyone treating them in such a manner and encourage
them to tell you straight away if it happens. If your business
deals with the general public, such as a hairdressers or shop then
have a notice up that you will not tolerate harassment of your
staff.
If you know about it and do nothing and it happens more than
once then it is likely to cost you a lot of money both in
compensation, legal fees and reputation!
For questions on this or any other employment issues contact
Natalie Roach of De Marco Solicitors
Natalie@demarcosolicitors.com or 01869 906004
Natalie Roach works as an employment consultant for De Marco Solicitors. I am an employment law specialist and have
been practicing in employment law exclusively for over 14 years. “I specialize in all aspects of employment law for both
individuals and companies and have run and won many more unusual cases such as gender reassignment and equal pay.
I also have a great deal of experience in TUPE and discrimination, as well as the more usual cases of unfair dismissal,
redundancy etc..
De Marco Solicitors are a specialist employment/commercial and family law firm offering a modern and fresh approach.