Harassment and bullying in the workplace is not a new problem for employers. Many have had policies and procedures in place for years and believe that they are doing everything necessary to comply with their legal obligations. However, with the recent media attention surrounding allegations of harassment against high profile employers and individuals; employers have received a hard-hitting reminder of the serious and potentially damaging implications of becoming complacent and failing to properly manage inappropriate workplace behaviour.
Implications for failing to address inappropriate behaviour
These stories serve as an important reminder to employers as to what behaviour is and isn’t acceptable in the workplace, the importance of training employees on equality, diversity and harassment issues, the importance of dealing appropriately with allegations of inappropriate behaviour (and not brushing them under the carpet) and generally reviewing policies and procedures to ensure that there are appropriate procedures by which employee complaints can be dealt with.
Under the Equality Act 2010, employers are liable for acts of discrimination (including harassment) committed by their employees in the course of their employment unless the employer has taken all reasonably practicable steps to prevent the discrimination/harassment complained of. Therefore, not only will the employee who has committed any acts of discrimination be personally liable, employers will also be liable. Compensation in relation to discrimination claims is uncapped and therefore discrimination claims can be costly.
Other claims could also result from acts of harassment and other inappropriate behaviour in the workplace, including claims of constructive dismissal, claims under the Protection of Harassment Act and potential personal injury claims.
In addition to the cost of legal claims and adverse PR risk; there will inevitably also be other implications for employers including potentially the cost of sick leave (if a harassed employee is signed off work due to stress), the cost of replacing staff, lost productivity, and lost time of managers and employees dealing with a complaint or investigation.
What is Inappropriate Behaviour?
Inappropriate behaviour in the workplace can take an array of forms. Whether it be harassment related to sex, race, religion or belief, sexual orientation, age, disability, gender reassignment for example or sexual harassment or bullying.
The important thing to understand is that when dealing with allegations of harassment it is the perception of the recipient that is important; provided that perception is reasonable. It is therefore the effect that the behaviour has on the victim, as opposed to whether the perpetrator intended his/her behaviour to have that effect, which is key.
It is therefore vital that, if an employee raises concerns about an employee’s or third parties behaviour, the employer takes the allegations seriously and deals with them appropriately.
If inappropriate behaviour is detected or reported employers need to act swiftly, consistently, and in accordance with their policies.
In the first instance appropriate action may take a number of forms. Depending on the severity of the allegations, it may be that the matter can be dealt with informally. However if the alleged misconduct is serious, the employer will need to deal with the matter formally and commence a full and thorough investigation.
If after investigation, it is considered that there is a case for the alleged perpetrator to answer, then the matter should be dealt with via the disciplinary procedure. In serious cases, it may be that the matter can be treated as gross misconduct and it may be that there are sufficient grounds to terminate the employee’s employment summarily without notice or payment in lieu of notice.
The best approach to ensure that people behave appropriately at work and to minimise claims and adverse PR for employers is to adopt a preventative strategy. Steps for employers to consider include: