Employers how do you deal with harassment of employees
Posted on 16th October 2020
There has been considerable coverage over the last 12 months about stalking and harassment of individuals. What does an employer do when this leaks into the workplace?
The general public perception of stalking and harassment is that of an ex-partner who will not accept “no”. Not all harassment and stalking occurs because of a former relationship. Some perpetrators have no romantic links to their targets at all.
Harassment and stalking are governed by the Protection from Harassment Act 1997. (“PHA”) Harassment is not fully defined in the PHA. The reason for this was to keep the interpretation of harassment flexible. Section 7 of the Act states that references to harassing a person include “alarming the person or causing the person distress”. Harassment can include nuisance phone calls, stalking, threats, excessive noise or any behaviour which causes the victim alarm or distress. Harassment is both a criminal offence and a civil action under the 1997 Act.
Stalking/Harassment occurring in the workplace
There are two issues that an employer needs to be aware of:
- Where a member of staff is being stalked or harassed, what are an employer’s duties?
- Where the stalker or harasser is employed by the organisation what does an employer do?
If an employee is being stalked or harassed, this behaviour may enter the workplace. A perpetrator is likely to try any means by which to obtain information about the victim and may contact various people at the organisation to obtain certain information. If that information is not given the perpetrator may turn his or her attention on the organisation and staff preventing that information being given.
Employers must provide a safe and healthy workplace for employees. Under Section 1 of the Health and Safety at Work Act 1974, employers have a duty of care towards employees. Protection from harassment and stalking is not included in health and safety executive directions, but a case could be made that if an employer did not protect its employees from stalking and harassment that employer has not carried out its duties.
This is especially important where the employee is being harassed because of their position in the business. Several companies have taken actions against third parties to protect their employees; notably cases were brought in 2007 and 2009 by Huntington Life Sciences Limited and Smith Kline Beecham against certain animal rights groups. Huntington Life Sciences Limited and Smith Kline Beecham took out proceedings against animal rights groups to protect their employers from various acts of harassment that had occurred, including damage of employees’ property. This is a clear example of where the employees were being harassed as a consequence of their employment. In such a situation, an employer has a duty to protect its employees.
Similarly, where an employee through the course of his or her employment has attracted the attention of a stalker or harasser it will be necessary for the employer to cooperate and assist with providing protection to that employee.
An employer’s first action should always be to contact the police and report the harassment and/or stalking. The police have a number of remedies available to them. They may look to charge a perpetrator and since January 2020 are able to apply for a Stalking Protection Order.
Due to restraints on police time and resources a victim may not get the support required. In this case an employer can apply for an injunction through the civil courts.
What does an employer do if employees are being harassed by third parties?
- Take the threats seriously. If someone is feeling threatened by a third party due to harassment there has usually been a number of incidences of harassment before they even bring it to your attention.
- Diarise any examples of harassment. Check with the employee that they are happy for you to share the fact that they are being harassed with appropriate members of the organisation. Notify those members of the organisation.
- Do not provide any information on the victim to any third party (this is good practice in any event, an employer is seen as a data handler for the purpose of the Data Protection Act and transmission of any details would be a breach of that Act) monitor social media and marketing platforms.
- As the perpetrator’s campaign continues, the harassment may include reputation damaging comments made on review platforms and social media platforms. The company should consider separate action in relation to defamation if this becomes a problem.
- Contact the police with the evidence. If phone calls are recorded keep any offending telephone calls and CCTV footage for longer than you would normally. This may be vital evidence to charge the perpetrator if the police take further action or provide evidence to the Court in relation to a civil injunction.
- If the Police are not able to assist, contact a solicitor who will be able to assist with Court paperwork for procuring an injunction in the civil courts.
What if the harasser is an employee
If you find out that you have an employee who is harassing third parties, action should be taken straight away by an employer. Employers should be aware that a perpetrator may harass and stalk by using IT.
An employer must consider a number of issues if stalking/harassment is suspected. For example:
- Did the stalking take place “in the course of employment”, i.e. during work hours, at work events, using work IT facilities and equipment;
- Is the complainant another employee, or someone outside the business;
- Is the behaviour of the accused harming the reputation of the business.
An investigation should be commenced. Employers should note that suspension of someone accused of harassment or stalking will not always be justified – it depends on the facts. Employers must think carefully before suspending an employee during an investigation.
As this area of law is sensitive, it is advisable to take legal advice on how to proceed in any disciplinary proceedings.
Our specialist Dispute Resolution solicitors have many years’ experience in the law surrounding harassment in the workplace. If you require our advice, please call us on 0808 231 6369 or request a call back online at your convenience.