Bulletins | October 23, 2018

Harassment claims – protecting your business

What is harassment?

The legal definition of harassment is very wide. Harassment can be on grounds of sex, race or a number of other protected characteristics. The law also specifically prohibits harassment of a sexual nature.  It can involve behaviour that is directed against an individual or that which is going on around them.

How does liability work?

If an employee commits harassment, their employer will be liable if the acts were done “in the course of employment”. This is interpreted very widely such that most acts that take place in the workplace, or even in a work context, will be caught. As a result, claims of harassment are usually brought against the employer as well as against the individual employees who are alleged to have committed the acts in question.

The employer’s defence

An employer can limit liability if it can show that it took all reasonable steps to prevent harassment. In practice, this means not only having a clear policy prohibiting harassment but also enforcing it by way of training or education for employees and dealing appropriately with problems if they arise.

  • Policies

It is no longer enough just to have a short anti-harassment policy by way of protection. Minimalist policies that do little more than proclaim zero-tolerance of harassment may be seen as simplistic or unconvincing.

  • Training

One of the best ways for an employer to defend a harassment claim is to demonstrate that employees are regularly trained as to what harassment is and why it is unacceptable. Employers should include compulsory anti-harassment training as part of the induction for new joiners. For existing employees, anti-harassment training should be repeated every 2-3 years. It is vital to keep records of whether individual employees have received training.

  • Dealing with problems

The effectiveness of policies and training will be undermined, in legal as well as cultural terms, if they are not consistently applied. So, for example, if allegations of harassment are made but not investigated or followed up with a disciplinary process, or if a lenient punishment is given to the wrongdoer, it will be difficult for an employer to establish that it took “all reasonable steps” to prevent harassment.