Of course, it is impossible for an employer to keep a tab on the actions of every one of its employees and what’s happening in the workplace all day, every day. Yet, where an employee behaves inappropriately and such behaviour might give rise to a discrimination claim, the employer can be held responsible for the actions of its employees for such claims, including harassment. So, what can an employer do to protect itself against exposure to such claims?
In the recent case of AM v GF and another, the Employment Tribunal heard about two employees, AM and her male colleague GF, who regularly engaged in ‘workplace banter’. Their banter included addressing one another with phrases such as “hello sexy” and “hi handsome”. As a result of one particular occasion, AM claimed that she had been sexually harassed by GF. On the particular occasion in question, AM alleged that GF pulled a “full blown moony” in response to AM’s request that he did not park his car in front of a fire exit. AM claimed that, in response to her request, GF mooned at her and that he pulled down his trousers so far that she saw part of his genitals. GF contended that he only showed the top of his buttocks.
The Tribunal found GF’s version of events to be true in light of GF’s evidence that he had undergone gender reassignment surgery and so whilst GF presented himself as a man, he did not possess any male genitalia which AM claimed to have seen. The Tribunal found that his behaviour amounted to an act of sexual harassment and said that whilst AM and GF engaged in ‘workplace banter’, the act of mooning went further than that level of familiarity. GF was ordered to pay £1,000 to AM and the employer was ordered to pay £3,500 to her.
The Tribunal held AM’s employer responsible for GF’s action because they were unable to show that they had taken reasonable steps to prevent the employee from doing the act in question. The employer had a harassment policy in place but the Tribunal felt that this was not sufficiently detailed. It also looked at what the company did to train its staff on such matters and found these to be perfunctory. For example, the Tribunal indicated that, as a result of the lack of training by the company, the company’s senior HR adviser was unsure about whether GF’s moony was behaviour of a sexual nature.
This case demonstrates that, whilst policies are a useful starting point for an employer to defend a claim against harassment, they will almost certainly not be enough. Employers should ensure that they take a robust approach in dealing with harassment in the workplace. Such actions include putting in place adequate training, making employees aware of what is and is not acceptable behaviour, how such matters will be dealt with, how such matters should be reported and so on. Of course, such procedures should be put in place and as a matter of good working practice in any event, but an employer who is able to show that they have practical procedures working in action to address such matters are likely to stand a better chance of defending claims for discrimination. Training of employees should be carried out regularly so the new members of staff are adequately trained and also to ensure that longer serving employees have their training kept up to date.
We can assist with drafting of relevant policies and procedures and we also provide training to employers and their staff to address discrimination in the workplace.
If you would like to talk through a situation you are dealing with, if you need advice on any aspect of employment law, or you have any training requests or needs, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])