SEXUAL HARASSMENT - 05.10.2006

The worth of a policy

The law

The Sex Discrimination Act 1975 (s.41 (1)) makes you vicariously liable for acts of discrimination or harassment committed by staff whilst acting in the course of their employment. In other words, if one employee sexually harasses another, it’s you who’ll have to pick up the pieces (and potentially a compensation award). However, there is a defence (s.41 (3)). You won’t be vicariously liable if you “took all reasonable steps” to prevent the employee from committing those acts. A new (pro-employer) case looked at how far you have to go in proving you’ve taken all reasonable steps.

The case

In Casperz v Ministry of Defence, Casperz (C) reported to the assistant chief constable (ACC). She raised several complaints about inappropriate remarks of a sexual nature he’d made to her. The ACC’s conduct was swiftly investigated following which he was suspended and then dismissed. C then brought claims that she’d been harassed due to her race and sex.

The tribunal hearing

Although the tribunal rejected many of C’s claims it did find that she’d been subjected to two incidents of sexual harassment by the ACC. On the face of it, the employer would then have been vicariously liable under the Sex Discrimination Act (s.41 (1)). However, the tribunal found that the defence in s.41 (3) - that of having taken all reasonable steps to prevent the harassment - was open to the employer. It had a dignity at work policy (which, coincidentally, the ACC was responsible for reviewing and publishing on a regular basis). The employer made it plain that it took all breaches (and allegations of breaches) of that policy extremely seriously. The way it dealt with the ACC proved a good example of this.

The appeal hearing

C appealed to the Employment Appeal Tribunal (EAT) arguing that the first tribunal had applied the defence wrongly. In fact, the EAT said it had acted correctly. There’s a two-stage approach to establishing the defence; (1) has the employer taken any steps at all to prevent the employee from committing the acts complained of? and; (2) were there any further reasonably practicable steps the employer could have taken?

Defence made out

In this case the employer’s defence succeeded. This was effectively on the basis that it had firstly, implemented the dignity at work policy and secondly, demonstrated that the policy had been properly implemented and enforced. In other words, the employer had taken all reasonable steps to prevent the harassment.

What’s to learn?

This is a good news case. It shows that if you have a dignity at work policy (or something similar, e.g. a sexual harassment policy, see The next step), which is properly adopted and enforced, you’ll be in a good position to defend allegations of sexual harassment.

The next step

For a free dignity at work policy visit http://personnel.indicator.co.uk (PS 08.17.02).