Employers beware. Under the Equality Act 2010, regardless of your knowledge or approval and with few exceptions, anything your employee does in the course of their employment is treated as having been done by you. In particular, you are vicariously liable for sexual harassment and the only defence is that you took “all reasonable steps” to prevent it.
Your employee may describe it as flirting, a relationship gone wrong, a bit of fun or (worst of all) “banter”. In the Employment Tribunal the victim will describe it as unwanted conduct of a sexual nature (or conduct related to their sex or the sex of another person) that had the purpose or effect of violating their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment.
Sexual harassment of an employee by one of their colleagues in the workplace will almost certainly be covered by the Equality Act. Harassment out of the office is a little more uncertain. For example, drinks after work with colleagues or a staff leaving do might be considered to be an extension of employment. Bumping into a colleague in a supermarket might more easily fall outside of employment but all cases are decided on their individual facts.
What does taking “all reasonable steps” look like? Before any harassment has taken place employers would be wise to consider the following:
• Reviewing your Staff Handbook. Equal Opportunities and Anti-Harassment & Bullying policies should be in place and kept under regular review.
• Making all employees aware of these policies and their implications.
• Training managers and supervisors in equal opportunities and harassment issues.
• Taking steps to deal effectively with any complaints, including taking appropriate disciplinary action.
For more information please do not hesitate to contact our experienced Employment team for a free and confidential discussion on 01924 387 110.