It used to be the case that if an employee was harassed by a third party, you as the employer could be held responsible. It was deemed that this was too hard to manage and prove which led to this being dropped from the legislation in 2013. However, the recent Presidents Club scandal and #metoo campaign have led to calls being made for the government to reinstate this law. Recent reports by the Equality and Human Rights Commission and the Fawcett Society (a charity that campaigns for gender equality) have criticised the UK’s sexual harassment laws, calling for renewed protection against third parties. The House of Commons Women and Equality Committee is currently completing an inquiry into sexual harassment at work and as part of this there could be proposed changes to the law. Whether this happens remains to be seen, but regardless of this you have a duty of care to your employees and in this blog we consider how you can put in place steps to prevent such harassment and what to do if it does occur.
The recent case of Unite the Union v Nailard (2018) further highlighted the potential need for change when it ruled that whilst employers should not the automatically liable for harassment by a third party if you fail to deal with it effectively because you were significantly influenced (consciously or unconsciously) by a protected characteristic then you ‘will, of course, be liable’.
Whilst there is a gap in the legislation it is clear that ignoring harassment could lead to:
- Bad feeling among staff
- Adverse publicity
- A claim for constructive dismissal
- Unwanted conduct claim (under the Equality Act 2010)
- Direct discrimination claim
So, what you can you do to prevent harassment at work?
- Ensure you have a clear policy in place which covers third party harassment
- Consider how you can include this in your contracts and communication with third parties
- Avoid situations which could lead to harassment (such as hiring all female workers, asking them to wear short skirts to serve an all-male client group as in the case of The Presidents Club)
- Beware of asking staff to sign non-disclosure agreements on matters of harassment, it should not happen in the first place and anything that can be seen as an attempt to ‘cover it up’ could attract adverse publicity.
- Investigate any allegations thoroughly
- Take appropriate action where needed.
- Avoid victimising the employee, moving an employee to a different location for example.
If you need any support or have a question about this or any other HR matter please get in touch.