Handling Harassment Claims

Employers facing discrimination or sexual harassment claims within their businesses can find themselves in a difficult situation. They may be unaware of any discriminatory acts or harassment that have occurred within their organisation until they are put on notice through an employment claim and are faced with litigation. The general principle is that employers will be liable for harassment and discriminatory acts undertaken by their employees unless they can demonstrate that they have taken ‘all reasonable steps’ to prevent those acts from taking place. This is known as the statutory defence under the Equality Act 2010. Examples of reasonable steps can include making all employees aware of any diversity, equality and inclusion policies, implementing those policies and providing adequate training to staff.

Understanding what this defence means in practice is important for employers to avoid legal liability, but also to ensure the right culture is created in the workplace.

Under the Equality Act 2010, three types of harassment are unlawful:

• 1. Harassment related to a protected characteristic (age, sex, disability, race, religion or belief,
  sexual orientation or gender reassignment)
• 2. Sexual harassment
• 3. Less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment

Sexual harassment in the workplace remains a very real problem, with a recent poll by the Trades Union Congress (TUC) finding that out of more than 1,000 women aged between 25 to 34, three in five said that they had experienced harassment at work.

Sexual harassment occurs where both:

• 1. Person A engages in unwanted conduct of a sexual nature
• 2. The conduct has the purpose or effect of either violating person B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for person B

A single incident can be enough to amount to harassment. The Equality and Human Rights Commission (EHRC) Employment Code advises that the word ‘unwanted’ means the same as essentially ‘unwelcome’ or ‘uninvited’, and it does not mean that express objection is made to the conduct before it is deemed to be unwanted. The Code describes unwanted conduct of a sexual nature as any unwanted verbal, non-verbal or physical conduct of a sexual nature. This includes (among other things) sexual comments or jokes, suggestive looks, staring or leering, sexual gestures, intrusive questions about a person’s private or sex life or a person discussing their own sex life, unwelcome touching, hugging, massaging or kissing.

When an employee is subjected to harassment by a third party, such as a patient, an employer will not be liable for the third-party harassment, unless their failure to protect an employee is related to a protected characteristic.

The Government has recently placed further responsibility on employers to take preventative measures by introducing a positive duty requiring them to prevent sexual harassment. On October 26 2023, The Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent and is now set to become law. The legislation sets new obligations on employers, and contains some of the most significant changes to workplace discrimination since the Equality Act 2010. Specifically, the legislation will impose a proactive duty on employers to prevent sexual harassment at work, as well as providing for an uplift in compensation of up to 25% if the employer has failed to take reasonable steps to prevent sexual harassment.

With the Act due to come into force in October 2024, employers should be taking active steps to comply with the positive obligation to prevent sexual harassment, which can include:

• Providing refresher training to employees (the importance of which can be seen in the case study later in this article)
• Ensuring their complaints reporting system is clear and that all complaints are investigated properly and promptly
• Updating company policies, such as their disciplinary, anti-harassment and bullying, diversity, equity and inclusion policies.

Taking steps to prevent harassment in the workplace is important for all employers, from a business perspective as well as a legal one. Complaints of harassment can lead to costly settlements, expensive litigation, damage to reputation and an adverse effect on employee relations. There are numerous recommendations of practical steps which employers should be taking or considering in order to prevent harassment in the workplace, and for employers to establish reasonable steps in defence.

To successfully rely on the reasonable steps defence and avoid liability for any harassment, an employer must have taken all reasonable steps to stop an employee from committing the act. The EHRC has published substantial guidance on what it considers a reasonable step. As a minimum, the EHRC advises that all employers will be expected to have in place:

An effective anti-harassment policy should, for example, set out what type of acts are not tolerated in the workplace and the consequences that can occur if harassment takes place.

This will include how to make a complaint and how it is dealt with. Employers should take all complaints seriously and ensure they carry out an independent and confidential investigation into the allegations. In the event that an incident did occur, it may be sensible to commence a formal disciplinary procedure. Typically, within a clinic setting, complaints should be made to either your clinic manager or HR team.

This includes taking appropriate disciplinary action against harassers, which might take the form of formal written warnings or in more serious cases, dismissal.

It is crucial for employers of all sizes to be running regular equality and diversity training. The training must be of sufficient quality to influence the employees receiving it to prevent acts of discrimination from occurring.

It is recommended that all staff should receive refresher training annually and obtain anti-harassment training from external providers such as law firms or the Advisory, Conciliation and Arbitration Service (ACAS).

The case of Allay v Gehlenemphasises the importance of refreshing equality and diversity training on a regular basis to ensure that it does not go ‘stale’ (in the judge’s words) or become outdated. The claimant in this case, Mr Gehlen, is of  Indian origin. In August 2017, he complained that he was being subjected to racial harassment on a regular basis by a fellow employee (Mr P). Mr Gehlen was dismissed on the grounds of performance in September 2017. Following his dismissal, he raised a formal complaint with Allay (UK) Limited about the harassment he received. He then brought proceedings in the Employment Tribunal for discrimination and harassment on the grounds of race.

The company defended the claim on the basis that they had taken all reasonable steps to prevent Mr P from exhibiting the racist behaviour he was accused of. The company had robust policies on equality, diversity and inclusion which employees confirmed they had read. The company had also provided training to all employees the year before the discrimination started. However, the Tribunal upheld the complaint of harassment related to race, finding that a colleague had regularly made racist comments to Mr Gehlen, and that other colleagues, including two in management positions, were aware of this behaviour but took no action to address or report it.It found that the training provided a year earlier was ‘stale’, or ineffective.They found that concerns were not taken seriously by management or HR, and ultimately no disciplinary action was taken.

The outcome of this case set a legal precedent, meaning courts may refer to it in similar cases thereafter. This particular case serves as an important reminder to employers that they should ensure their employees have understood and taken on board harassment training. Employers may be able to evidence the effectiveness of training by asking employees to take follow-up tests, providing refresher training, taking staff surveys and asking follow-up questions.

In the event that an employer receives a complaint of harassment by an employee, it is important to follow the following steps:

Immediately acknowledge receipt of the complaint, ensuring the employee knows their concerns are being taken seriously.

Maintain the confidentiality of the individuals involved to protect both the complainant and the alleged harasser.

Designate an impartial person (internal or external) to conduct a thorough investigation.

Arrange a formal meeting to understand the specifics of the complaint.

Record details of the complaint, meetings and all other relevant interactions.

Ensure the alleged harasser is provided with details of the allegations and an opportunity to respond.

Collect any available evidence related to the complaint, including emails, text messages and witness evidence.

Once the investigation is complete, review the findings and make a decision based on the evidence. This could range from no action, to disciplinary action, to dismissal depending on the nature and severity of the harassment.

Communicate the outcome to both the complainant and the alleged harasser. In the instance that the complainant or alleged harasser is not happy with the investigation or its outcome, they have the right to appeal. Employers will then have to re-hear the matter.

After the complaint has been resolved, review policies and training to prevent any future incidents.

It is advisable to seek legal advice when handling harassment complaints to mitigate the risk of any discrimination or unfair constructive dismissal claims in the employment tribunal. Where an employer fails to deal with harassment in the workplace, an employee with two years’ continuous service can claim that the employer has breached implied terms of their contract of employment, enabling them to resign and make a claim for unfair constructive dismissal.

Employers should look to create a safe and inclusive workplace, free from harassment and other bullying behaviour. The key here is to build a working environment which encourages victims or witnesses of harassment to come forward, such as by ensuring managers are approachable, and implementing an easy and discrete reporting system. Providing victims of harassment with avenues to counselling and support services is also crucial to facilitate a truly supportive working environment.