Harassment - key facts employers must know

It won’t have escaped anybody’s attention that recent years have seen a huge upsurge in harassment claims against employers. Caused in part by the #MeToo phenomenon, it has produced ripples of anxiety amongst businesses who are either keen to avert such claims or worry that historic claims will come out of the woodwork to haunt them.

In this article, rradar solicitor Laura Moore looks at what harassment is and what to do if a harassment claim is brought against the business/organisation or against an individual employed by the business/organisation.

What is harassment?

Under the Equality Act 2010, there are three categories of harassment which can be summarised as follows:

• harassment related to a relevant protected characteristic;

• sexual harassment; and

• less favourable treatment as a result of rejection or submission to certain types of harassment.

Harassment related to a relevant protected characteristic is defined as:

“unwanted conduct related to:

• age;

• disability;

• gender reassignment;

• race;

• religion or belief;

• sex;

• sexual orientation,

which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.”

Sexual harassment is defined as “unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.”

Less favourable treatment harassment is when an individual is affected in some way because they have rejected or submitted to:

· unwanted conduct of a sexual nature; or

· unwanted conduct that is related to gender reassignment or sex;

which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Does it have to be deliberate?

It might be thought that all the employer has to do is show that there was no intention to harass but this isn’t the case; under the Equality Act 2010, part of the test for harassment is whether the conduct had the purpose or effect of creating the environment referred to. The person complaining of harassment doesn’t need to show that there was a deliberate intention to create any such environment to succeed in a claim for harassment, merely that such an environment existed.

It should also be noted that there’s no need for the person alleging harassment to have the relevant protected characteristic. It’s possible, for example, for an individual to be offended by a homophobic comment, even if that individual isn’t gay.

When coming to a decision on whether the conduct in question has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, the Employment Tribunal will take into account:

• the perception of the complainant;

• the other circumstances of the case;

• and whether it was reasonable for the conduct to have that effect.

Consequently, each claim will be decided on the facts, background and circumstances of the case.

What can employers do?

One of the most important things to do is to ensure that the business/organisation has a robust and separate policy on harassment and bullying, setting out in no uncertain terms what’s expected of its employees, how to report any allegations of harassment and what will happen once an allegation has been made. The whistleblowing policy may also apply if it is sexual harassment because of the criminal implications. All employees need to be informed about the policy and the sanctions that are in place to deal with such behaviour. This can be done in a number of ways, whichever is the most suitable for the work environment. If there is no policy or procedure in place, this may count against the employer in the event of an Employment Tribunal claim.

Historical allegations

One of the most significant effects of the #MeToo phenomenon is the emergence of historical allegations of harassment. Victims who might have been too afraid to raise such claims in the past may now feel reassured by a change in culture and come forward.

Depending on how long ago the alleged incident took place, there may well be a problem with gathering evidence – witnesses may have changed employer and documentation/CCTV footage may have been erased or disposed of. This can cause problems for an employer when attempting an investigation of historical allegations but they must strive to do their best, in order to show a tribunal that they have done everything reasonably practicable to get to the bottom of things.

Another thing to consider about historical allegations is that there’s a three-month time limit for bringing discrimination/harassment claims to a tribunal and it’s probable that such a claim would be ruled out of time, unless a claimant can show that it has been ongoing/continuous. However, it is within a tribunal’s power to extend the time limit if it believes that to do so would be ‘just and equitable’, so it should not be assumed that a claim will automatically be struck out.

Alternatively, somebody could choose to bring a harassment claim in the criminal or civil courts under the Protection from Harassment Act 1997 instead. They have 6 years to do so rather than 3 months and under the Act, such a claim could lead to imprisonment.

Social media and commercial reputation

As important as the legal repercussions will be the social and reputational ones. Social media can be a vicious arena and it is entirely possible for a Twitter storm to wreck a business’/organisation’s image without having to submit to the rigours of due process.

Employers need to be aware of this and not pretend that social media is something that can be ignored. A coherent, flexible, rapid and robust social media reaction strategy needs to be in place long before any allegations arise, so that a measured response can be issued and the crisis managed. Businesses/organisations may want to tackle this themselves or there are reputation management consultants who can handle this on their behalf – often engaged by the business’/organisations’ legal representatives when things get serious. It’s definitely worth checking to make sure the business’/organisation’s insurance covers such things.

rradarstation

rradarstation is a resource available through the AXA MLP where policyholders can access rradar’s legal advisory team over the phone or by email and web portal that provides over 1,000 articles, step by step guidance sheets, forms, sample letters and templates to download relating to running your business/organisation.