The duty to prevent sexual harassment: have you risk assessed your Xmas party?

The new duty on employers to prevent their staff from being sexually harassed at work is now in force. It's an anticipatory duty which requires employers to think about where their staff are mostly likely to be at risk and then to take reasonable steps to prevent those risks.

Work-related social events pose a particular risk, not least because they often take place in venues open to members of the public and where alcohol is available. 

So, if you are having a work party to celebrate the festive season, you'll need to think about the risks of sexual (and other forms of) harassment and decide, in advance, what you are going to do to reduce these.

A recent case - Pealing v The Croft Aberdeen Ltd - provides some salutory lessons for employers.

Facts

Ms Pealing worked part-time in the respondent's bar and restaurant. She attended a night-out with colleagues to celebrate the end of the festive season which had been organised via the work WhatsApp group. The directors made a cash contribution towards the party and paid for the group to eat and drink, free of charge, at a restaurant. 

After the meal, the group moved to a pub. Once there, Ms Pealing's line manager announced to the group “What happens on a staff night out stays on a staff night out”. He then took some money out of the kitty to get another round of drinks and gestered putting it down Ms Pealing's cleavage. She pulled away from him and made it clear that she was shocked by his behaviour. He immediately apologised and Ms Pealing said that it was “fine”. But she told other colleagues who had witnessed what had happened that she felt “humiliated, embarassed and objectified”.

She raised a complaint. The manager who dealt with it arranged for her to work shift patterns which meant that she didn't have to come into contact with her line manager and investigated what had happened. He concluded that the line manager was ‘very remorseful’ about his behaviour, had apologised and there was no evidence that he'd done anything which had caused other members of staff to worry about his behaviour in the past. He also said that she hadn't immediately gone home, had continued socialising and accepted drinks from her line manager and that the employer considered the matter closed. 

Ms Pealing chose not to return to work and instead issued a number of claims including direct sex discrimination and sexual harassment.

Decision

The employer argued that it was not vicariously liable for the actions of its manager because the incident had taken place outside of work premises and working hours. The tribunal rejected that argument. It agreed that the issue was not straightforward, but decided that there was a sufficiently close connection between the night out and the incident.

Direct discrimination

The tribunal decided that the treatment suffered by Ms Pealing was motivated by the fact that she was a woman and that a man would not have been treated in the same way. She, therefore, succeeded with this part of her claim.

Sexual harassment

She also succeeded with her claim for sexual harassment. Although there was no physical contact between the parties, the line manager's behaviour towards Ms Pealing was unwanted, clearly of a sexual nature which violated her dignity and humiliated her. 

Injury to feelings award

Although the tribunal was sceptical that Ms Pealing was as upset by what had happened as she claimed (due in large part because she had remained partying four hours after the incident and had accepted drinks from her line manager), the respondent did not call anyone who had been on the night out to give evidence. It, therefore, had to accept that the incident caused her considerable distress. She also had some medical evidence which indicated that she had been prescribed medication to reduce her anxiety shortly after event.

It awarded her an injury to feelings award of £5,000 which is in the middle of the lower Vento Band that applied at the time.

Tips for other employers

1. Work parties are likely to be extensions of the workplaces

If you organise, fund or encourage your staff to have a work party, you are likely to be vicariously liable for their actions. That will be the case even if the party doesn't take place on your premises and/or is outside of your normal working hours.

Even if there may be some legal ‘wriggle room’ about whether the party takes place 'in the course of employment'', it's better to assume that you will be liable for anything that goes wrong and plan ahead.

2. Is the venue suitable?

Unless you are hiring a venue that's only open to your staff you need to consider whether they are likely to be at risk of being sexually harassed by other people you don't control - such as other people at the venue and their staff. Ask to see the venue's risk assessment and give your managers the responsibility of looking out for your staff and stepping in to diffuse anything that looks like it could escalate or cause problems.

3. Limit alcohol

Alcohol affects the part of the brain that controls inhibition and slows down how we process information. People that are drunk are more likely to behave inappropriately than those who remain sober.

Don't provide a free bar as this may encourage some people to drink to excess and limit the amount of alcohol you provide. Ask everyone to drink sensibly, and if you are paying for some drinks include non-alcholic drinks as an option and ensure that water is available in any table setting.  

Ask your managers to step in if a member of staff becomes extremely drunk and organise for them to get home safely. 

4. Don't force staff to attend

Work parties aren't for everyone. Make it clear that your staff are free to decline an invitation and don't need to provide a reason.

If your party takes place during normal working hours you will need to consider what will happen to staff who don't want to attend. Do they have to work? And, if they do, will they be given additional time-off at a later date to compensate them for that time? 

5. Set the tone

Make sure that your staff know that they will be expected to treat each other with respect during the party and to adhere to your behavioural policies. It's sensible to remind them of this when they accept the invitation and just before the party starts. 

One of my old bosses (who went on to become an employment judge) used to say to us: "remember that the party is an extension of the workplace and behave yourselves. That was enough for a group of employment lawyers. You may need to go further than this with your workforce and spell out what could happen if they behave inappropriately. 

You should also remind staff who to speak to if they encounter any problems or see witness any inappropriate behaviour.

Our training

If you haven't already started training you staff on sexual harassment now is a good time to start. We have produced two modules to help you staff understand the new duty. The first is directed at all staff - both junior and senior, and explains, the legal definition of sexual harassment and examples of it. The second module is directed at line managers and provides them with the tools they need to confidently deal with incidents and role model best practice. You can find out more about this training here.

We can also offer bespoke face to face  or remote training tailored to your organisation. Please speak to Jenny Arrowsmith or Gordon Rodham for more information.

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