“Work Harassment”

Where an employer fails to take what the employee tells him seriously (or at face value) it may give rise to the employee making a claim for constructive dismissal.

Wigan Borough Council v Davies 1979 – “There is an implied term in contracts of employment that the employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow workers; and where an employer has an obligation to take reasonable steps to achieve something and takes few or no steps, the onus of proving what steps would have been reasonable is on the employer.”

An employer’s failure to take ‘reasonable and practicable steps’ to prevent the harasser from harassing the complainant may likely make the employer “vicariously liable” for the harassers acts pursuant to s.109 EqA 2010. This means that the employer could be “vicariously liable” for an employee’s conduct, whether the employer knows harassment is happening or not.

In our own case, we contended our employer was “vicariously liable” for omitting to take adequate control measures to prevent further acts of harassment from being purported upon our persons –Canniffe v East Riding of Yorkshire Council [2000] IRLR 555, EAT

The fact our employer initiated an investigation into our grievances was not enough. Our employer could have, and should have acted immediately, and taken proactive and preventative measures to ensure that we were not subjected to any further acts of discrimination, harassment, less favourable treatment or victimisation. This position is in line with The Statutory Code of Practice on Employment 2011 –

Chapter 17 Paragraphs 6.102 & 6.103 –

“Employers will sometimes have to deal with complaints about prohibited conduct that arise between members of staff. They can avoid potential conflicts by noticing problems at an early stage and attempting to deal with them by, for example, talking to the people involved in a non-confrontational way. It is important to encourage good communication between workers and managers in order to understand the underlying reasons for potential conflicts. Employers should have effective procedures in place for dealing with grievances if informal methods of resolving the issue fail.”

“There may be situations where an employer should intervene to prevent a worker discriminating against another worker or against another person to whom that employer has a duty under the Act (such as a customer). In these circumstances, it may be necessary to take disciplinary action against the worker who discriminates.”

Notwithstanding, our employer had failed to observe the mutual trust and confidence by failing to demonstrate adequate prevention methods to eradicate harassment from reoccurring. The employer had omitted to render any training, consultations or advice to its employees. Despite the fact our employer had a harassment policy insitu, it had failed to implement its policies and procedures within the workforce at large. It is not enough for an employer to rely upon the fact it has a Harassment Policy. The employers Harassment Policy has to be “effectual” and “effectively communicated” to all its employees – See: Beadles Group Ltd v Angelica Graham. Also, see “fiduciary obligations”.

“Sex Harassment”

Bracebridge Engineering Ltd v Darby [1990] IRLR 3 EAT
A single act of harassment if it is sufficiently serious will be unlawful discrimination.

Canniffe v East Riding of Yorkshire Council [2000] IRLR 555, EAT
The existence of an employer’s formal policy against sex harassment is not necessarily enough on its own to amount to an adequate defence against a sex discrimination claim by an employee arising from sex harassment. To havea valid defence, an employer must prove that it took such steps as were reasonably practicable to prevent the employee from doing the sex discriminatory act. Therefore if the employer has not taken such steps, it cannot escape liability by showing that the discriminatory act would have taken place even if it had taken them.

Beadles Group Ltd v Angelica Graham
The employer had no written policy on either sex discrimination/harassment, or equal opportunities, and did not provide training or advice to ordinary employees about sexual harassment, or warn them against it. Ms Graham was awarded £180,000

Reed v Steadman [1999] IRLR 299
The Employment Appeal Tribunal held that, in relation to sexual harassment, the issue is whether “the words or conduct [are] unwelcome to the victim and it is for her to decide what is acceptable or offensive. The question is not what (objectively) the employer/tribunal would or would not find offensive.”

Fletcher and Steele v Cannon Hygiene Ltd
A failure by an employer to separate two women from their female harasser amounted to harassment. The employer failed to take sufficient steps to protect them from further sex harassment. This case takes into account the European Commission Code of Practice on Sex Harassment 1991 to separate the victim from the alleged harasser.

Insitu Cleaning Co Ltd v Heads [1995] IRLR 4
The EAT held that a ‘sexual remark’ was discriminatory. Mrs. Heads was greeted in a meeting by the words “Hiya, big tits”. She found the remark “very embarrassing” and “distressing”. The tribunal found that the remark was sufficiently serious to constitute a “detriment” for which her employer’s were “vicariously liable”.

For in depth information, see here