Harassment in the workplace is a potential headache for all employers. Often, an employer may not even be aware that harassment is taking place until it receives a grievance from an employee claiming that they have been harassed by another. Employers cannot afford to take such complaints lightly, as harassment can amount to a form of discrimination, for which the employer can be liable, where it is related to one or more of the "protected categories" (sex, gender reassignment, marital status, pregnancy, race, disability, sexual orientation, religion or belief and age). Awards of compensation in discrimination claims are uncapped and therefore can be extremely expensive.
Under the discrimination legislation, harassment is defined as "Unwanted conduct which has the purpose of effect of violating a person's dignity or creating an offensive, intimidating or hostile environment". Similarly, the Protection from Harassment Act 1997, under which individuals are able to bring non-discrimination based harassment claims against employers, defines harassment as a "course of conduct" which alarms a person or "causes distress".
Harassment comes in many different forms and is not limited to physical or verbal abuse. Harassment can occur in any media or forum in which individuals interact. Increasingly, work colleagues interact via email, text message and through the internet, in particular via social networking sites such as Facebook, MySpace and Twitter. The concern for employers is that we may now be in an era of "textual harassment" where harassment and bullying takes place through the sending of inappropriate and offensive text messages, emails or internet postings, which the employer is not aware of and has little control over.
In order for an employer to be liable for the harassment of one employee by another, the conduct in question must take place "in the course of employment". The case of Jones v Tower Boot Co Ltd established that the test of "in the course of employment" should be interpreted broadly. Therefore, where harassment has been conducted by text message or through a social networking site used in the workplace and during working hours, a Tribunal would be entitled to find, depending on the facts of the particular case, that this was carried out "in the course of employment". The dividing-line can, however, become blurred in the case of emails or text messages being sent off premises and outside of normal working hours. The case of Chief Constable of Lincolnshire v Stubbs considered the factors to be taken into account in such cases, which include:
- Whether the incident took place on the employer's premises.
- Whether the victim or discriminator was on duty.
- Where the alleged act of harassment took place at a social gathering, whether that gathering included employees' partners, customers or unrelated third parties.
- Whether the event took place immediately after work.
Some situations may be considered an "extension of employment", for example, a colleague's leaving party or informal drinks with colleagues in the pub immediately after work. However, an employer is less likely to be vicariously liable for emails or text messages sent wholly outside working hours, off work premises and without any connection to the workplace. In all cases, it will be a decision for the Tribunal to reach on the facts of the particular case.
Employment Tribunals are increasingly used to dealing with evidence in the form of emails, text messages and internet postings. Provided such evidence is relevant and proportionate to the issues in the case, it will be disclosable (that is to say, an employer would be under an obligation to disclose it) and such evidence can be relied on and produced to the Tribunal. In the case of emails or texts that have been deleted, it may be possible to recover them; however, consideration should be given as to whether it would be proportionate to do so given the potential costs involved.
In the face of the potentially far-reaching scope of employer liability for harassment, what steps can employers take to mitigate against these risks? Employers are able to raise a defence to discrimination based harassment claims known as the "reasonable steps" defence if they can show that they have taken reasonable steps to prevent harassment from taking place. In order to be able to rely on this defence, employers would be well advised to consider the following steps:
- Put in place a well drafted Telephone, Email and Internet policy which sets out very clear guidelines for telephone, email and internet use, including what is considered to be acceptable personal usage. Ensure that the policy is well publicised, readily available and, ideally, acknowledged by all employees.
- Consider whether access to any particular websites (e.g. Facebook or Twitter) should be restricted, in part or in whole, and incorporate this into your policy. Unless there are genuine business reasons for employees to use such social networking sites, employers are perfectly entitled to prevent employees from using the company's systems for personal use or to restrict their use, for example, to outside of normal working hours. This may reduce the risk of any potentially offensive and harassing activity being found to have taken place "in the course of employment" , although each case will turn on its own specific facts.
- Decide whether it is appropriate to monitor employees' email and internet usage in order to uncover and prevent abuse of the systems. If monitoring is to be carried out, this should be made clear in your policy. Monitoring what employees actually write online, however, would require sophisticated monitoring equipment and the benefits this technology would bring may not justify the expense. Monitoring of mobile phones will clearly be difficult, if not impossible, particularly where the phones are personal rather than company mobile phones.
- Put in place a well drafted Harassment Policy which sets out examples of what is considered to amount to harassment and refers expressly to harassment taking place on-line and via mobile phone/text messaging. The policy should make it clear that such behaviour will not be tolerated and will be treated as a disciplinary issue.
- Ensure that the Harassment Policy is well publicised, regularly reviewed and that all employees receive appropriate training on it, particularly managers who are expected to set appropriate standards of behaviour and deal with instances of harassment when they occur.
- Finally, set up clear procedures for staff to raise complaints of harassment and for those complaints to be dealt with promptly and appropriately in order to try and resolve the matter at an early stage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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