07 November 2017

Sexual harassment at work has become an extremely topical issue. Yesterday I was asked to speak on the BBC Radio Scotland “Call Kay” phone in and provide a legal perspective to the discussion. It is clear that identifying the bounds of acceptability within the workplace is not an easy matter on which to find consensus. Clearly there is a spectrum of behaviour and differing views as to acceptable conduct.

As a matter of law, any unwanted conduct of a sexual nature which has as its purpose or effect the violating of a person’s dignity or creates a intimidating, hostile, degrading, humiliating or offensive environment is unlawful sexual harassment. Such conduct could lead to the employer being held liable (in addition to the perpetrator) in an Employment Tribunal. Given there is no limit on the amount of compensation that can be awarded in these situations, such conduct can lead to a very expensive claim.

One of the main practical issues we are often asked is whether or not the employment relationship of the perpetrator should continue.

When is it fair to dismiss? The answer to this question will be different for each employer and will require to be considered on a case by case basis. Each workplace is different and the individual culture and approach needs to be examined. Legal advice should be sought in relation to this issue since it is not necessarily an easy question to answer whether or not dismissal would be fair.

Employers do, however, need to ensure that they identify the boundaries of acceptable behaviour and train staff accordingly. If an employer can show that they have taken reasonably practicable steps to prevent harassment in the workplace occurring, the employer may have a statutory defence. Ensuring an appropriately worded policy is created and implemented across the workplace with suitable and regular training is a good start.

The BTO Employment Team have an "Avoiding Harassment Toolkit" to help employers navigate their way through this complex area of law.  Click here to read more info on this service.  The Avoiding Harassment Tooklit will help identify the issues to be considered, provide bespoke policy and related documentation and train staff in an engaging and powerful way.

Give your friendly BTO employment lawyer a call and we can help you minimise the risk and protect your organisation.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.