Employers need to make sure they protect staff from inappropriate behaviour and harassment

August 16, 2019
Chris Bushnell

Legal Counsel

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Employment Law Expert, Chris Bushnell, comments on the breaking news that more than one in ten retail workers surveyed have experienced unwanted sexual touching at work

A survey of retail employees has discovered that more than one in ten retail workers have experienced unwanted sexual touching at work and more than a third thought their employer could have done more.

From an employment law perspective, an employer can be liable for discrimination and harassment conducted by its employees if the actions of the offending employee are committed in the course of his or her employment.  An employer has access to a “reasonable steps” defence if it can show that it took all reasonable steps to prevent the employee from committing the discriminatory act.  This is normally likely to require an employer to at least have appropriate policies in place and, importantly, to implement and enforce them.  Other reasonable steps are likely to include providing appropriate training and dealing properly with complaints made.  The “reasonable steps” need to have been taken before the discrimination occurred – it is not enough for an employer to only address an issue if or when it arises.

An employer may also face liability for harassment by third parties, such as customers.  Legislation that specifically dealt with this was repealed by Parliament from 1 October 2013, which makes this type of claim more difficult to make out, although it is still possible that in some circumstances an employer may face liability.  Given that issues of harassment and discrimination are now receiving more prominence, it may be that specific legislation addressing third party harassment is reintroduced in due course.  In any case, if an employee resigns as a result of harassment by customers or an employer’s failure to address it, the employer may be liable for constructive unfair dismissal.

Although it might be helpful, it is not essential for most employers to have a whistleblowing service which allows complaints to be raised anonymously.  However, employers should consider whether they have a culture that encourages complaints to be brought to HR.  For example, when complaints are brought, are they investigated properly and is the complainant informed that action has been taken?  Some employers ask employees who raise complaints about serious issues if they wish it to be dealt with “informally”, which is not necessarily an appropriate question.  Employees in that situation are often worried about being seen to create trouble and concerned that they might lose their job and often respond if asked, that they are content for it to be dealt with informally.  That should not be treated by an employer as a reason not to investigate properly.  Importantly, where an investigation finds that an employee has behaved inappropriately, what action is taken?  Sadly it is too often the complainant that is ultimately given the option (or required) to move teams or leave the employment altogether, albeit perhaps with a settlement payment.  Employers should instead try to protect the complainant, and other staff, by taking appropriate action against the employee who committed the harassment.