Q. At our recent Christmas party our sales director attempted to dance with one of our trainee sales advisors. She publicly rebuffed his advances and has now complained to me that the sales director has told her she will never get a job in sales when she qualifies. What should I do?
A. The office Christmas party can cost employers more than they bargained for, as in many cases the employer will be liable for the acts of their employees at such events.
Your sales director's 'attempt' to dance with your trainee sales advisor could constitute sexual harassment. It was clearly 'unwanted' and could reasonably be considered as violating the trainee's dignity. However, this is not just a complaint about the incident of sexual harassment itself, but the consequences of the trainee's rejection of that harassment.
Many employers are not aware that in cases of sexual harassment, employees can bring a claim of sex discrimination not only relating to the sexual harassment itself, but also if the employee has suffered 'less favourable treatment' for rejecting that harassment.
This means that you could be held responsible for both the act of harassment itself and the 'less favourable treatment' (ie. the sales director's decision not to appoint the trainee upon qualification). It is therefore important that you deal with this complaint. You will first need to meet with this employee and investigate her complaint. If following the investigation, her complaint has substance then you will have to decide how to deal with the sales director. In some cases an informal course of action such as an apology (if agreed with the complainant) can resolve the matter. However, as the complaint concerns the sales director's abuse of his position, some form of disciplinary action is probably more appropriate. Ensure that the disciplinary procedure complies with the ACAS Code of Practice on disciplinary and grievance procedures and that any disciplinary sanction applied is reasonable in all the circumstances.
The best defence an employer can have to any sexual harassment claim is to ensure they have formal equal opportunities and anti-harassment policies. Such policies should confirm that any form of harassment is unacceptable, will not be tolerated by the company and may lead to disciplinary action. It is also helpful if the policy contains examples of what is considered harassment and confirms that any complaint will be treated in confidence. All employees should be made aware of the policy and, if possible, managers and supervisors should be trained on issues relating to equal opportunities and harassment.
Michael Briggs, solicitor, Howes Percival LLP