The World of Work by Harry Sherrard

“Ensuring a harassment free workplace”

As an employer focused practice, we rarely take on cases for employees, but recently I made an exception. A former client asked me to consider taking on a case for his daughter, and when the facts were outlined to me, I agreed to do so.

His daughter, working in the hospitality business, had been subject to an entirely unacceptable series of acts of sexual harassment, resulting in considerable distress. The harassment was perpetrated by her manager, and she was caught in the classic trap of not wanting to make a complaint, in case her career was damaged. However, things reached a point at which she could not continue, and she was forced to resign.

The employer has, thus far, sought to defend the allegations, using the statutory defence which is established by the Equality Act. Otherwise known as the “reasonable steps” defence, this defence enables an employer to avoid liability if it can establish that it took reasonable steps to prevent harassment taking place. To succeed in establishing this defence, the employer essentially needs to establish three things. First, that there is a comprehensive anti-harassment policy in place, clearly identifying what is or could be unacceptable behaviour. Second, that staff have been trained in these matters, with training that specifically covers unacceptable comments and actions in the workplace. Third, the employer needs to demonstrate that it is not merely paying lip service to the policy and training, but that it takes a proactive and interventionist approach, monitoring the workplace, and ensuring that acts of harassment are not tolerated.

In the case that I am handling, the employer believes that it has ticked the first two boxes; they have a policy and the manager attended training (although the detail of that is yet to be seen). However, my assessment is that they fall down badly on the third. Inappropriate conduct and remarks are prevalent within the business, with a culture of managers seemingly believing that explicit comments directed at junior female members of staff is an appropriate and acceptable way to behave.

The lesson for employers is to remember that vital third aspect. The policy and the training are requirements, but don’t rely on having ticked these boxes. The employer must demonstrate vigilance in the workplace, and to be ready to intervene to take action against those who contravene the policy. In particularly sensitive workplaces, perhaps those with a high proportion of young females, such as hospitality, a regular audit exercise is necessary to satisfy the “reasonable steps” defence. Relying on a policy, the terms of which the employee may have forgotten, and training, which may have taken place many months or even years previously, may well not be good enough.

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