Harassment laws: the office pest

Employers have long been aware of their duty to ensure that employees are not
subject to harassment by colleagues and co-workers. Effective anti-harassment
policies and procedures have been adopted by employers for a number of years,
together with a genuine zero tolerance approach to harassment within the
workplace. The Equality Act 2010 now adds to the employer’s burden.

The Act will extend an employer’s obligations to its employees to the extent
that the employer may be deemed to have harassed the employee even where the
harassment arises from the act of a third party. The employer will have a
positive obligation to take all reasonable steps to prevent third party
harassment. A “three strike” rule will operate in practice, placing liability on
the employer where the employee has been harassed in the course of employment on
three or more occasions.

Employers will no doubt be asking what steps they can genuinely take to
prevent third party harassment. The employer usually has no contractual
relationship with the third party and cannot force him (or her) to undertake
training, nor take disciplinary steps or issue sanctions in the event of breach
of the employer’s own policies and procedures in relation to harassment.

It is unlikely that an employer can be 100% protected from acts of third
parties. In an attempt to mitigate that risk however, the employer should go
through a focussed thought process, considering the actual situations that its
employees are commonly in when dealing with third parties. For example, are
employees left unsupervised attending client events, functions or providing
training? Are employees at high risk of verbal abuse in telephone conversations
with clients or third parties? And how do employers monitor issues which arise
without putting unnecessary strain on their client relationships?

Practical steps to consider are as follows:

• Give genuine thought to the situations in which your employees will find
themselves. How can you minimise the risk of harassment in those situations?

• Should client entertaining ever be done by one employee alone?

• Ensure that the third parties you regularly deal with are made aware of
your policies and procedures, and your exposure even for their actions. Ask for
their buy-in to the zero tolerance approach.

• Identify your risk areas and deal with them. If you know there are certain
groups of ‘high risk’ third parties, be very clear to address that exposure.

• Ensure that all of your employees know (i) your procedures (ii) that you
need to know all of your employees’ concerns in relation to third party
harassment (iii) that you will deal with each complaint quickly and efficiently,
and (iv) that you will provide the employee with full support.

Whilst there are no guarantees that your business will not fall foul of the
new provisions, you inevitably will if appropriate risk management steps are not
adopted. The key is to be in a position to positively defend claims by employees
and minimise your financial and public relations exposure.

Elena Cooper is a senior associate in the employment team at law firm
Dundas &
Wilson.