Employment Alert No. 104 - Discrimination and Harassment
August 1, 2005
| What is the Issue? |
Since 1 December 2003, discrimination and harassment on the grounds of sexual orientation have been prohibited.
In common with all other discrimination law, an employer may be found to have discriminated itself or could be held liable for the discriminatory acts of its employees carried out in the course of employment.
There is no defence to direct discrimination/harassment - but an employer can defend an allegation of secondary liability (i.e. liability for the acts of an employee or any third party) if it can show that it took reasonable steps to prevent the behaviour in question.
In the recent case of Brooks v Findlay Industries UK Ltd B alleged that he had been discriminated against and harassed on the grounds of his sexual orientation. The Employment Tribunal made observations on two interesting issues:
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what are an employer’s obligations if an employee complains of discrimination and harassment, but does not want the employer to investigate?
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what steps does the employer need to take to be able to defend a claim by saying that it took such steps as were reasonably practicable to prevent the discrimination or harassment?
| The Tribunal's decision |
B had been subjected to disparaging remarks and conduct by his colleagues, including his line manager and the Head of HR. Confidential HR information had also been released about him to colleagues. B complained to H and the Head of HR about his treatment, but asked them not to investigate because he did not wish to make things worse.
Perhaps not surprisingly on these facts, the Tribunal found that B had been discriminated against and harassed on the grounds of his sexual orientation. In giving its decision, it gave the following guidance:
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even though B had asked his employers not to investigate his complaints about the conduct of colleagues, the employer should have still taken steps to deal with the problem - despite opposition from B. Fear of complaining is not unusual in cases of harassment. The Tribunal believed that the employer had, in any event, been reluctant to deal with the problem;
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the employer was in no position to even try to rely on the defence that it had taken reasonable steps to prevent the discrimination and harassment. Its equal opportunities policy did not mention sexual orientation and none of the workforce had received equal opportunities training.
| What does this mean for employers? |
There is always a risk that employees may act inappropriately towards their colleagues. However, this case serves as a reminder that there are steps which an employer can take to help itself defend any claims of discrimination and harassment:
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if an employee raises a complaint, he should be encouraged (but not forced) to allow management to investigate. If the employee says that he does not want any action taken, the employer should try to gently persuade. In the Brooks case, the employer gave the impression that it was actually quite pleased not to have to investigate B’s complaints. The key will be to make the employee (and subsequently the Tribunal) feel that management did take the complaint seriously and really wanted to try to help the employee address the problem.
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employee handbooks and equal opportunities policies should be updated to expressly prohibit discrimination and harassment on the grounds of sexual orientation and, indeed, the other relatively new prohibited ground of “religion or belief”.
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certainly managers (and preferably all employees) should receive equal opportunities training. Ideally training should take place regularly so that knowledge is retained and updated - and there should be “refreshers” to cover any new prohibited grounds of discrimination. However, repeating training can be time consuming - a more practical (but, perhaps, less effective) alternative to repeat training sessions would be for the equal opportunities policy to be distributed annually/bi-annually together with a note reminding employees of the expected standards of behaviour. Employees should sign and return an acknowledgement of receipt, which the employer should retain.
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managers should be vigilant for signs of intolerance.
