The Harvey Weinstein allegations brought sexual harassment into the spotlight. Employers are naturally concerned about the risk of claims being brought against them. Because they are frequently in the front line, staff in the hospitality industry may be more open to potential harassment than in other working environments.
Aside from the potential cost, a claim for sexual harassment can cause untold reputational damage. The Equality and Human Rights Commission (EHRC) is calling for new legislation to ensure that employers protect their staff from sexual harassment and remove the barriers to victims reporting incidents.
The Equality Act prohibits sexual harassment, which is defined as unwanted conduct related to sex, which has the effect of violating someone’s dignity or creating an intimidating, hostile degrading, humiliating or offensive environment. This relates not just to permanent employees, but also workers, job applicants, agency workers and former employees. Less favourable treatment, as a result of rejection of such conduct, is also prohibited. Examples of sexual harassment at work include a male employee having a screensaver of a naked woman, sexual jokes, suggestive looks, sexually explicit emails, or unwelcome touching.
Your responsibilities as an employer
As an employer you are vicariously liable for acts of harassment committed by your staff “in the course of employment” even if you had no knowledge of it happening.
But sometimes the line becomes blurred where incidents occur at social gatherings, out of work hours, off the premises, but attended by work colleagues. In a claim, a court would consider whether parties were “on duty” at the time. A colleague’s leaving party or after work drinks might be considered an extension of employment, as would a training course or conference. However, a chance meeting of colleagues in the supermarket, or events at a colleague’s house out of work hours, would not. It is a question of fact in each case.
Employers must be aware that some social gatherings will be an extension of employment and must ensure that employees understand the standard of conduct expected.
Liability for acts third parties
And what of customers who make unwanted advances towards staff? Since the law changed in 2013 employers are NOT specifically liable for harassment by third parties. However, employers may still be liable under the general harassment provisions if an employee complains about a customer’s conduct and the employer does not address the issue.
The same applies to other third parties such as a contractor doing work in your outlet – if they sexually harassed one of your bar staff you would not be liable for their acts. However, if the employee complained to you and you did not take any action then your lack of action could potentially be unlawful. Therefore you should take all employee complaints seriously and take action where appropriate.
A claim against an employer for inaction, which then has the effect of violating an individual’s dignity, or fails to prevent a humiliating or hostile environment, would not be straightforward for an employee to bring, but employers would still be advised to take reasonable steps to protect their employees. For example, it would be advisable to have in place an anti-harassment policy that covers behaviour of customers.
Does an employer have a defence?
Yes. You will have a defence to a claim of sexual harassment by one employee against another if you can show that you “took all reasonable steps to prevent the act or that type of act from occurring“.
Reasonable steps include:
- Having and implementing an equal opportunities policy and an anti-harassment and bullying policy. You should review your policies and be able to evidence that you have done this. Make all employees are aware of the policies and their implications.
- Providing training for managers and supervisors in equal opportunities and harassment issues.
- Dealing effectively with complaints and taking appropriate disciplinary action. Your disciplinary policy should expressly mention sexual harassment and list this as a potential ground for summary dismissal. EHRC Guidance recommends that as complaints of sexual harassment are often sensitive and complex anybody dealing with such a complaint should receive specialist training.
What can it cost?
There is no cap on the compensation that can be awarded following a successful claim for sexual harassment. The compensation will include an award for loss of earnings (although the applicant must have taken steps to mitigate their loss by finding a new job) and injury to feelings.
In most cases an employee will bring a sexual harassment claim against both employer and the employee involved. You and the employee concerned will have joint liability for any award made. The claimant is most likely to pursue you as employer for the full award as the employee concerned may well not have the money to pay.
Guidance for Employers
The EHRC has published guidance for Employers on Sexual Harassment in the Workplace. It includes:
- a definition and examples of what sexual harassment is, giving good practical examples
- employer’s responsibilities
- what a sexual harassment policy should include
- how to put the policy into practice
- how to handle sexual harassment complaints
Future Developments
The EHRC has also published a report entitled “Turning the Tables – ending Sexual Harassment at Work” in which it makes recommendations for future legislative changes including the introduction of:
- Mandatory duty for employers to take effective steps to prevent harassment or victimisation in the workplace. The EHRC would enforce this new duty
- Statutory Code of Practice setting out the steps employers need to take to comply with the mandatory duty, with a possible 25% uplift in compensation when an employer breaches the code
- Stronger protection for those harassed by customers and clients
It also recommends that ACAS should introduce specialist sexual harassment training for managers and that employers should be obliged to publish their sexual harassment policy on their website.
See the full EHRC recommendations HERE
