Harassment in the Workplace and the Importance of Refresher Courses
Key Contact: Claire Knowles
Author: Adam McGlynn
Harassment can occur in a number of ways, the general principle being where a person engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them. From the wording “or effect of”, it is clear that harassment can occur even unintentionally, making it an often-unpredictable offence. Other forms of harassment include ‘sexual harassment’, which occurs where this unwanted conduct has a sexual nature, and where a person treats someone unfavourably because of their rejection or acceptance of sexual advances.
As you can see, harassment is not a pleasant thing to have in the workplace and employers should want to prevent it as much as possible. To motivate this approach, the Equality Act 2010 places the employer at risk by providing that anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.
However, a potential defence is provided in circumstances where the employer has taken all reasonable steps to prevent A from acting in that manner. The recent case of Allay v Gehlen confirms that employers and tribunals should take a three-stage approach:
- Identify any steps that have been taken
- Consider whether they were reasonable
- Consider whether any other steps should reasonably have been taken
Are the steps taken reasonable?
When considering whether a step was or will be reasonable, an employer should consider the practicalities of arranging it, such as the time, effort, and expense. It is also legitimate to consider the effectiveness of that step, as the practical requirements could out way its impact if it is likely to achieve little or nothing.
One step which is often considered reasonable is to provide appropriate training, for example, anti-harassment training and equal opportunities training. The Employment Appeal Tribunal in Allay examined this exact subject and came to the following important conclusions:
- Consideration must be given to the nature of the training and the extent to which it was likely to be effective. In Allay, the training given was considered sub-standard.
- The fact that employees have attended anti-harassment training but have not understood it, or have chosen to ignore it, may be relevant in determining whether all reasonable steps have been taken to prevent harassment.
- The frequency of training provided is a relevant consideration. In this case, training had not been provided for several years, meaning any benefit of training provided will have eroded and employees who have been hired in the years since would not have received it.
- Effective training will be considered to have greater longevity. On the other hand, if it is clear that training has not been effective, further action will be required, even if refresher training would not usually have been provided within such a timescale.
- Assessing the steps which have been and should be taken is an ongoing responsibility. An incident of harassment will not necessarily mean that training has been ineffective, however, it not possible to conclude, either, that training continues to be effective simply because there has not been an incident.
In conclusion, harassment in the workplace is an unpleasant thing, but the risk of it arising is, unfortunately, ever-present. If potential liability does arise, a defence is available, but only to the employer that can show that all reasonable steps to prevent harassment have been taken. Employers are recommended to evaluate what steps they can take to prevent harassment and effective, regular training is a great place to start.
Our Acuity Employment team offer effective anti-harassment and equal opportunities training which both informs the employee and mitigates the risk to the employer. If your staff have not received such training yet, or their training may have become stale, please contact our us for more details.
Claire Knowles – Partner
Adam McGlynn –Solicitor
Daniel Evans – Solicitor