Protection from Harassment

With the festive season now truly upon us and Christmas parties in full swing comes the seasonal risk of harassment and drunken behaviour amongst some employees. While some incidents may be regarded as merely foolish behaviour caused by a bit too much alcohol (and forgiven shortly afterwards), other incidents may be much more serious in nature and could result in harassment claims. Harassment claims may not only be a costly affair for the employer but may also damage an organisation’s reputation.

In this Christmas edition we will identify some types of behaviour that could amount to harassment and we will also look at whether harassment by one employee of another at the office Christmas party could be the responsibility of the employer. Finally we will consider what steps an employer may take to minimise the risks of claims being brought on grounds of harassment.

Harassment Legislation

Harassment is dealt with in 2 main pieces of legislation, namely: 1) the Protection from Harassment Act 1997, which deals with harassment in general, and 2) the Equality Act 2010, which deals with harassment, where the act of harassment forms part of discriminatory conduct.

Protection from Harassment Act 1997

The Protection from Harassment Act 1997 (the ‘1997 Act’) was initially brought into force to deal with stalkers but now covers unwanted conduct in general, whether such conduct is between neighbours, ex partners, in the work place or between strangers.

Under the 1997 Act, it is not enough for the conduct itself to amount to harassment. Indeed, the harasser must know or ought to know that the conduct amounted to harassment. A person ought to know that conduct amounts to harassment if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. For the purposes of the 1997 Act, harassment is conduct that, on at least 2 occasions, causes another alarm, distress or to fear that violence will be used against him.

The civil courts have held that employers can be vicariously liable for one employee’s harassment of another and employers are therefore well-advised to ensure that their staff handbook contains an anti-harassment and bullying policy.

A claim under the 1997 Act cannot be brought in the Employment Tribunal but has to be brought in the civil courts (it can also amount to a criminal act) and if the claim is successful the person guilty of the offence could be sentenced to a maximum of 6 months’ imprisonment or a financial penalty, or both.

The Equality Act 2010

The Equality Act 2010 (the ‘EA’) prohibits harassment related to age, disability, gender reassignment, marital or civil partner status, pregnancy or maternity, race, colour, nationality, ethnic or national origin, religion or belief, sex or sexual orientation.

Harassment under the EA, is defined as unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment and can only be brought in the Employment Tribunals. Apart from the obvious unwanted physical conduct, harassment may for instance also include lewd or racist comments or jokes if it has the purpose or effect referred to above.

Harassment under the EA may also include the following by way of examples:

  • unwanted sexual advances or suggestive behaviour, and suggestions that sexual favours may further or hinder someone’s career;
  • continued suggestions for social activity after it has been made clear that such suggestions are unwelcome;
  • sending or displaying material that is pornographic or that some people may find offensive
  • offensive or intimidating comments or gestures, or insensitive jokes or pranks;
  • ignoring or shunning someone, for example, by deliberately excluding them from a conversation or a work place social activity.

Under the EA, employers are liable for acts of harassment carried out by employees in the course of employment. It has long been established that a party which has been organised by the employer outside the workplace (such as a Christmas party) is regarded as in the course of employment as it is so closely connected with the employee’s work.

Possible Defences

An employer has a defence under the EA if it can show that it took all reasonable steps to prevent the employee from harassing another. Reasonable steps include having an anti-harassment policy in place and training employees in what conduct might amount to harassment and that harassment is not tolerated in the work place.

The only possible defence under the 1997 Act is for the harasser himself to show that the conduct, which amounts to harassment, was carried out for the purposes of:

  • preventing or detecting crime;
  • complying with an enactment or rule of law; or
  • that in the particular circumstances the pursuit of the course of conduct was reasonable.

If a claim is brought pursuant to the 1997 Act, the employer will not be able to rely on the ‘reasonable steps’ defence it has available under the EA and it is therefore important for employers that employees are trained in its anti-harassment policy to minimise exposure of such claims. Employers should be aware of the fact that harassment is defined widely and would therefore include unwanted conduct at the office Christmas party.

If you have any questions to the issues raised above or would like us to review or draft an anti-harassment policy for you, please do not hesitate to contact the Employment Team at ebl miller rosenfalck.

The material contained in this newsletter is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , December 2011

Please contact:

Sara Kennedy - Solicitor

DD +44 (0)20 7553 9937

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