While recent high profile allegations of harassment and assault in Hollywood and Westminster have shone the spotlight onto unacceptable or illegal behaviour in the workplace, employees need to have confidence in the protection offered by both criminal and civil law, says Ashley Harkus, head of employment law at Everett Tomlin Lloyd & Pratt solicitors... 

These recent revelations demonstrate the consequences of failing to provide a process where employees can complain about allegations of inappropriate behaviour, whether it is criminal behaviour, bullying, abuse of position or an atmosphere of hostility. 

The Equality Act 2010 gives protection from harassment, whether its sexually motivated or otherwise, and is intended to prevent abusive, illegal, threatening or inappropriate conduct in the workplace. The criminal law also offers additional protection to victims of a crime. 

Harassment is defined as unwanted or unwelcome behaviour which intentionally or unintentionally creates an atmosphere which is intimidating, degrading or offensive to employees. This can be direct or indirect and given the popularity of social media can often be contained in offensive emails, tweets or comments on social networks. 

It has long been the case that this type of unacceptable behaviour can lead to claims in the Employment Tribunal and most employers now have policies about behaviour at work, coupled with a process so that employees can make their complaints, often in confidence, via a grievance procedure. 

There are also criminal sanctions, as the Protection from Harassment Act 1997 makes it an offence to undertake a course of conduct involving two or more acts of unwanted behaviour. 

Employers have a responsibility to take steps if they believe on the balance of probability that harassment had taken place, as employees have a right to a safe workplace. 

Clearly a number of recent allegations could amount to both sexual harassment and criminal conduct. In the workplace acts that fall short of being criminal conduct could well include inappropriate jokes or comments, round-robin emails with sexual content or unwanted advances resulting from an abuse of power.

The employer’s duty can at times extend to contact outside of the workplace if there is a sufficient link to work. Conduct outside of work hours which doesn’t have that link to the workplace is more likely to come into the criminal arena. 

An employer has a defence available to them if they can show they took all reasonable steps to stop the conduct occurring again. However employees are still entitled to take a claim against the person who harassed them. 

The employer’s responsibility to protect their staff can extend to protecting them against actions of clients or customers, although the employer must be given the opportunity of resolving the matter first.

Most responsible work places will have formalised grievance procedures where a senior member of staff unconnected to the allegations themselves can investigate the matter and potentially suspend the person alleged to have been involved in wrongdoing until the conclusion of that investigation. The matter can then proceed to a disciplinary hearing where, if the employer is satisfied that the misconduct has occurred, that employee can then be punished. 

The person against whom the allegation has been made has rights and will be entitled to either trade union representation or to be accompanied by a colleague and will also have the right of appeal against any decision. 

Ultimately an Employment Tribunal can decide if that decision was fair and reasonable and whether the sanction was within the reasonable range of responses available to the employer. 

As Employment Tribunals are open forums where the public and press can watch and report and given the general responsibility on employers to ensure that their employees are safe, it is important to take allegations seriously and properly investigate them as the potential harm to staff and the damage to the reputation in the industries in which they work can have far reaching consequences.