Is an Individual’s Behaviour the Responsibility of the Employer?
A Case of Sexual Harassment
Here’s the scenario.?
It’s your annual summer party.?
It’s been a tough 6 months for everyone what with the cost-of-living pressures.?
Everyone's worked hard, and you want the team to enjoy a well-earned day off.?
You start with some Pimms before serving lunch. You follow that with wine with lunch. Then there are some team activities before pre-dinner drinks and more drinks with dinner.?
People are very happy and relaxed but then some people start getting a little too relaxed!?
You notice some inappropriate touching going on.?
You know that a taxi has taken someone home due to them vomiting.?
But, they're all adults right?
It’s not the company’s responsibility if people choose to drink too much, right??
Wrong!
A recent case ruling has clarified the rules around company liability. The focus is particularly around employee actions that occur after excessive drinking at a company event.
'P' v Crest Nicholson Operations Ltd
The case that looks at company liability at corporate events was brought against Crest Nicholson, a large construction company.
It saw a female employee (Employee Y) win a harassment claim against her employer after being raped by a manager after a Christmas party.?
The Scenario
The scenario was very similar to that which is set out in section 1.? The company provided a lot of alcohol to their employees over the course of the afternoon and evening.?
A site manager, Employee X, became “touchy-feely” with a colleague, Miss V.? A second site manager spoke with Employee X. He explicitly told him to stop being inappropriate and this second site manager was threatened with violence by Employee X. Miss V later lodged a formal complaint stating that Employee X had touched her bottom and breasts.
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Employee Y did not witness any of these incidents.
She was staying in a hotel with some colleagues and following the event, got a taxi back to the hotel with Employee X.? Employee Y stated that, at the time, she did not feel that he posed any threat to her personal safety.?
When they got into the taxi, Employee X tried to kiss Employee Y, and she rejected his advances.
Because Employee Y was very drunk, she could not consent to sexual activity.?
She woke to pain and found Employee X to be sexually assaulting her.? She went to the police about the incident, but they did not have sufficient evidence to prosecute Employee X.
Resulting Issues
Employee Y reported the assault to Crest Nicholson who suspended Employee X and then ultimately dismissed him.
The assault continued to affect Employee Y’s mental health, causing her to take time off work due to depression.? She resigned from her position in October 2020 and pursued a claim against the company.
You can find the full Employment Tribunal Decision on the government website.
So, is an individual’s behaviour the responsibility of the employer?
The short answer is, it's complicated.
However, there are some key elements that you, as an employer need to remember, in order to avoid a similar case:
Changes Are Coming
From October of this year, a key piece of legislation is changing and companies will now need to be able to demonstrate the action they've taken to prevent sexual harassment from occurring.
This means that it's no longer acceptable to have policies that simply act as a tick-box exercise.
You need to be able to prove that you've done everything you can to prevent sexual harassment and that your employees are in no doubt what you expect from them in terms of conduct and behaviour.
To support you, we've created a Sexual Harassment guide that'll take you through your responsibilities as an employer and the exact steps you need to take to safeguard your business and your employees.
Sexual harassment tribunals can be costly, so don't get caught out. Download the guide to access all the information you'll need on this complex topic.