Stepping up: When Harassment meets Health & Safety

On one view, the new duty on employers to take reasonable steps to prevent sexual harassment is too limited a duty to prompt meaningful change. The threat of an uplift on compensation if a claim is successful is a limited incentive and could potentially be mitigated through settlements of claims that have reasonable prospects of succeeding. So what other liabilities could an employer face?

In other jurisdictions, sexual harassment is viewed from a different perspective. In Australia, for example, the government looks at allegations of sexual harassment from a health and safety perspective, which poses more significant corporate liability for employers. Similar avenues are available to be pursued by workers in the UK. Perhaps the increased spotlight on sexual harassment at work will see an increase in civil claims outside of the purview of the Employment Tribunal.

This article provides a brief overview of these separate employee rights against the backdrop of the new duty under the Equality Act, exploring other ways in which employers may face claims in respect of sexual harassment, and to highlight the importance of being ready to explain and defend the approach adopt by employers in relation to harassment at work

Health and Safety breaches - personal injury claims

The Health and Safety At Work etc Act 1974 (the 1974 Act) requires employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their staff at work. There are circumstances in which an employee could claim that harassment at work has come about as a result of a breach by their employer of their obligations under the 1974 Act. The scope of the 1974 Act is wider than the Equality legislation. It clearly applies to potential risks from (and to) third parties, and opens the door to civil claims.

Where there is an alleged breach of the 1974 Act and a member of staff suffers injury as a result, that staff member can bring a personal injury claim. The court will assess whether the employer has breached its health and safety duty to the employee. The law acknowledges that not every injury or incident can be avoided, but requires evidence of the steps that an employer has taken to prevent the incident. The employer will therefore want to show that it took steps to protect health and safety, as required.

The normal time limit for personal injury claims is three years from the date of injury. The injury could be psychological and/or physical but must have been reasonably foreseeable.

Lone workers may be particularly at risk, and lone worker risk assessments should include the risk of harassment. Third parties may also pose a risk to employees, which needs to be addressed in a risk assessment.

Given that liability requires a breach by the employer of its duty to take reasonable steps to protect the employee, the sorts of steps as required by the Equality Act to prevent sexual harassment could assist in defending a claim for personal injury where the harassment took place at work or in the course of employment.

Civil claims under the 1997 Act

The Protection from Harassment Act 1997 (the 1997 Act), as well as establishing potential criminal liability for those found guilty of harassment, allows claims for compensation to be made against the person responsible for the harassment and, where that conduct occurred "in the course of employment", employers may be held responsible for harassment by their employees.

Under the 1997 Act, damages can be awarded for anxiety or other conditions that fall short of a recognised psychiatric disorder. This means that the 1997 Act allows for recovery of compensation for anxiety, without the need to establish a more severe psychiatric condition diagnosis. There is no requirement that the injury be foreseeable, having taken steps to prevent the harassment is not a defence, and the time limit for claims under the 1997 Act is six years.

To avoid vicarious liability for acts of its employees (or third parties who have a relationship with the employer akin to employment), the employer would need to show that the harassment did not occur "in the course of employment", which requires analysis of the relationship between the employee, what they have done, what they were employed to do and the harassment.

That said, for a Claimant to succeed in their claim under the 1997 Act it is, however, necessary for the Claimant to show that there were at least two separate acts of harassment, both of which were serious enough to constitute a criminal offence, regardless of whether criminal proceedings are pursued. This is generally expected to be a higher bar than for negligence claims.

The legal position is complex and, fortunately, claims against employers under the 1997 Act are not commonly brought.

What does this mean for employers?

The Me Too movement brought sexual harassment at work into sharp focus. Shows like Baby Reindeer are prompting widespread discussions about victims blaming themselves, perhaps not reporting the entirety of an issue, and the speed at which situations can escalate. We are in an era where it is more likely than ever before that people will speak up about harassment at work. However, some may do so with a whisper. Employers need to consider whether they have processes in place that will enable quiet voices to be heard and their allegations to be investigated, to prevent situations escalating.

From a Health and Safety perspective, the first step would be a risk assessment, with consideration of how to address the specific risks within the particular organisation. Key, of course, is then to act on the risk assessment and take steps to address the risks highlighted. Steps identified by a risk assessment, if reasonable to put in place, are also likely to be reasonable steps for the purpose of the new equality duty.

onsidering how to meet the new duty to prevent sexual harassment at work is perhaps an opportunity to address the broader risk of harassment at work. Preventing a second incident against the same person will prevent liability under the 1997 Act, taking steps to prevent incidents may prevent liability under the 1974 Act or the Equality Act. The nexus of legal rights and obligations in this area all point towards preventing harassment at work, with the overarching aim of fostering a safe and inclusive working environment for all staff.

If you would like to discuss any issues connected to harassment, or to the prevention of harassment, please contact Ranjit Dhindsa.