Workplace harassment: A duty of care

By Sally Eastwood, employment solicitor at Farleys.

Sally Eastwood Farleys

Workplace harassment is not only unacceptable on moral grounds but, if not addressed or badly handled, can create serious issues for your business, including poor morale, resignations, absences and damage to the business’ reputation.

It is important for employers to understand what constitutes harassment at work, how best to prevent it and how best to deal with it, should a complaint be made.

Employer’s liability

An employer is responsible for the acts of all employees, and has a duty of care while they are at work.

Therefore, a victim of harassment can bring a claim in the employment tribunal against both the offending colleague and the business for failing to prevent the harassment.

Employers may be held liable for the conduct of employees, including conduct which occurs outside ordinary working hours such as at work-related events such as a works party.

Minimising the risks

An employer will not be liable for harassment by one of its employees if it shows that it took all reasonable steps to prevent this from happening.

To minimise risk, employers should implement and enforce a policy setting out the business’ approach to dealing with workplace harassment, including for example:
  • a non-exhaustive list of unacceptable behaviours
  • prevention measures
  • reporting channels
  • investigation and disciplinary procedures
However, simply having a policy in place is not sufficient to show that employers took ‘all reasonable steps’ to prevent the conduct from occurring. Employers must ensure that all members of staff are aware of the policy and take part in regular training on workplace harassment.

To instil and retain employees’ confidence and trust, it is imperative that employers take all complaints seriously, conducting full and impartial investigations into any allegations. If an employer concludes that harassment has taken place, it must ensure that the disciplinary action taken against the perpetrator is reasonable and proportionate to the circumstances.