… and Joy Drummond discusses the implications of the Protection from Harassment Act in the workplace and how firms can avoid getting into trouble
As Tony discusses above, in these types of workplace harassment cases it is often the employer that ends up forking out compensation, not the individual who was accused of doing the bullying. Yet, most employers in the construction industry would not expect a claim for harassment to be brought against them as a result of their workers’ behaviour or attitudes towards each other. Indeed, the Protection from Harassment Act itself was originally designed to offer civil compensation for victims in stalking cases, rather than for the workplace.
Following the landmark case of Majrowski vs Guy’s and St Thomas’ NHS Trust 2005, in which it was ruled that an employer could be held liable for harassment by its employees, this is something companies need to be aware of. The courts have tried to set the barrier high by stating that a claim under the act will only succeed if the behaviour complained of is more serious than simply being unattractive or unreasonable, yet the subjective nature of one worker’s treatment of another often means that cases are brought before the courts that employers may assume would fall below this barrier.
In the construction industry, where the line between banter and harassment is blurred, employers need to be especially aware of behaviour that could lead to claims. They should draw up a list of measures to deal with harassment, and so protect themselves as far as possible from harassment charges.
One method is to treat it as any other risk, and make a risk assessment. Assessing who, how and why certain employees may be harassed will make this behaviour more recognisable and action can be taken more swiftly.
The courts are likely to be more understanding if an employer can show that it took steps to identify the problem and treated it as a serious disciplinary matter, rather than accepting it as part of the job.
Similarly important is the need for firms to ensure its harassment policy is enforced on all levels within the company. In Judy Veakins’ case, it would seem that Jackie Lavy’s seniority was partially the reason none of Veakins’ colleagues took her actions seriously. A company must not be afraid to enforce rules against senior managers, even if that means making an unpleasant choice and losing a valued employee.
Employees who are subject to harassment will often feel embarrassed or concerned about speaking out, so emphasising confidentiality is crucial in a harassment policy. Employees should be made to feel comfortable in coming forward so any that do should be listened to properly, and their allegations should be followed up with an internal investigation.
Laughing it off or saying, “that’s just the way he does the job,” will not look good if the case later comes to court, as it will be evidence that the company failed to take the initial complaint seriously.
In less serious cases it may be better to handle instances of harassment informally. Often people don’t realise that their behaviour is upsetting others and a quick word in private can easily resolve the situation. If a case is brought before the courts, the chat would be no defence in itself but if the harassment continued and formal action was taken, the courts might agree that the employer had acted appropriately.
Employers and managers in the construction industry must take heed of this case and be aware that an increasing number of employees are more aware of their legal rights and the remedies available to them when it comes to behaviour at work. Harassment claims are growing in popularity, even though it is likely many workers in the construction industry will have either seen or experienced for themselves instances of behaviour as described in this case and may consider it the norm.
Employees are much less likely to put up with harassment and even if others only think certain behaviour constitutes ordinary workplace banter, the firm could still be at risk of having to pay out if courts disagree. The lesson from this case is that to avoid liability under the Protection from Harassment Act, it must be impressed upon both employees and those in senior positions that harassment will not be tolerated.
Joy Drummond is an employment partner at law firm Simpson Millar