As a starting point, employers who fail to take action to deal with sexual harassment face the risk of tribunal claims with no cap on the compensation that may be awarded.
But it’s not just the initial tribunal hit. Employers may lose good employees and experience a decline in morale and performance, as well as increased absence, amongst those that stay, along with the associated loss in productivity and negative financial impact. The political parallels are clear.
Given these consequences, employers cannot afford to deal with complaints of sexual harassment badly.
Understand exactly what it means
Legally speaking, harassment involves unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. Harassment can be a single incident or a series of incidents stretching over a period of time.
It covers verbal, non-verbal and physical conduct of a sexual nature. This includes jokes and emails of a sexual nature, the displaying of pornography, unwelcome sexual advances and assault. It need not be intentional; it is sufficient that the victim feels offended, as long as they are not being overly sensitive.
Employees are not the only ones protected from harassment: employers may also be liable to their agency workers, consultants, partners and non-executive directors. As well as being vicariously liable for the actions of its employees, an employer may also be responsible for the conduct of third parties, such as clients or visitors.
A duty to protect
An employer has a duty to protect its employees from such harassment, and a failure to take reasonable steps to deal with third-party harassment can leave employers open to tribunal claims.
The government has already announced previously that it intends to make changes to this framework. This involves repealing the statutory provisions that make employers automatically liable for third-party harassment, in circumstances where harassment has occurred on two previous occasions, not necessarily from the same third party, and the employer is aware that this has happened, but has not taken reasonable steps to prevent it from happening again.
However, the repeal of these provisions may not relieve employers from all liability for third party harassment. Employees may still be able to argue that an employer’s failure to act amounts to unwanted conduct that violates their dignity or creates an offensive, intimidating or hostile environment.
So what should employers be doing to mitigate these risks?
Employers have a defence to harassment claims if they can show that it took all reasonable steps to prevent the employee or third party from committing the discriminatory act or from doing anything of that description.
At the very least, employers should develop a formal harassment policy. This does not have to be complicated but it must be consistently implemented. Managers should lead by example and there should be clear standards of behaviour for all employees setting out what is, and is not, acceptable conduct in the workplace.
It can sometimes be very difficult for employers to avoid liability, especially if they are unaware of what is going on until the employee lodges a grievance or goes off sick with stress. But having a policy will put the employer in a stronger position to do so, and hopefully ensure situations such as those engulfing Westminster can be avoided.
Ann Bevitt is employment partner at Morrison & Foerster.