With sexual harassment so much in the news, this is a good opportunity for employers to make sure that they are taking adequate steps to protect themselves from claims. The key point to understand is that employers will be liable for any harassment of one employee by another if it is done ‘in the course of employment’. This is a wide enough test to cover not only inappropriate behaviour in the workplace but also things said and done within the context of work – including business trips, conferences and work-related social functions. It is a cliché to warn employers of the potential dangers of the office Christmas party, but this year such warnings will carry some additional weight.
The best way an employer can protect itself against claims for harassment is to try their best to ensure that employees do not harass their colleagues. This is not just because there will then be no harassment on which a claim can be based, but also because an employer has a defence to a claim if it can demonstrate that it took all reasonable steps to prevent the harassment from occurring. To meet this test the employer will have to show that it treats harassment as serious misconduct and ensures – through induction and training – that all staff are aware of the standards of behaviour required. It is important that the matter is not simply dealt with in a written policy that sits somewhere near the back of the employee handbook, but that the employer actively promotes a workplace culture that does not tolerate harassment and encourages employees to speak up at an early stage if the behaviour of a colleague makes them feel uncomfortable. Employers who meet this standard will not only enjoy a measure of legal protection – they will also be providing happier and more productive places to work.