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Advice: How firms can protect themselves against harassment claims

PUBLISHED: 15:10 16 July 2019

Darren Sherborne of Sherbornes (c) Will Pascall UK

Darren Sherborne of Sherbornes (c) Will Pascall UK

Will Pascall

Harassment claims in the workplace are on the rise. But, says Darren Sherborne, of Sherbornes Solicitors, there is much firms can do to protect themselves

Harassment as a claim is becoming more common place as people become more willing to take offence, and more aware of their rights. Employers can take steps to protect themselves, and for very little effort, can gain a great deal of security.

Harassment is rarely carried out at work by the actual employer.

The employer is normally a limited company or a partnership, and an employee has a choice of who to take to a tribunal if they feel harassed.

They can name the alleged harasser, so Jo Bloggs for example, and Joe Bloggs, if found guilty, can be made to pay the award if the claim is successful.

More common is that the employee names the employer, Widgets Ltd for example, because Widgets Ltd is more likely to have the money to pay the claimant the sometimes considerable sums claimed for harassment.

This is possible because the Equality Act states clearly that an employer can be responsible for the acts of its employees, if they breach the Act.

That is, unless the employer can claim the Statutory Defence. Think of it as a Get Out of Jail Free Card for harassment claims.

In order to qualify for the Statutory Defence, the employer must be able to show, that it took all reasonable steps to prevent the harassment and protect the harassed employee.

There are some very basic requirements for an employer to be able to benefit from such protection, but they are not complicated or expensive, and like insurance, you won't wish you were covered until you need protection, at which point it is too late.

The best way to cover most of the requirements for this protection is to have a policy which complies with the ACAS Code relating to harassment. To do this it should:

1. Identify behaviours which are not acceptable

2. Provide a confidential method of raising concerns

3. Provide advice to the employee about keeping a diary

4. Should not insist that the complaint be made in writing at the outset

5. Provide guidance on questioning alleged harassers

6. It must be accessible to all staff, and

7. It must be kept up to date.

In addition, you should provide training to managers, (or even better, all staff) on diversity and the perils of harassment.

If you do these things, as an employing company, you have a strong chance of benefiting from the Statutory Defence should a claim of harassment be brought against you.

Given the average award for claims under the Equality Act last year was £36,000 for race claims, £19,000 for sex claims and £32,000 for disability claims (see Ministry of Justice figures), the cost of prevention does not seem that high.

Of course, it seems a little sordid to outline the benefits of the Statutory Defence in terms of money alone, but it has to be said, just how many businesses out there would listen if I said it would make them a decent business?

There is a growing movement to stop non-disclosure agreements in the case of harassment.

If this move takes hold, and such NDA's are banned, the ability for victims to accept compensation and rebuild their lives will be gone.

The only remedy available will be legal proceedings, and in such cases, the only real protection against reputational damage will be the Statutory Defence.

Darren Sherborne is a senior employment lawyer at Sherbornes Solicitors in Cheltenham. For more information, visit sherborneslaw.co.uk.

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