RECENT UK TRIBUNAL RULINGS SHED FURTHER LIGHT ON SEXUAL HARASSMENT RISKS FOR EMPLOYERS

Employment law is set to see some major changes over the coming years but the last few months have seen a series of compelling Tribunal decisions that reinforce employer responsibilities, particularly in preventing and addressing sexual harassment.  The following recent cases highlight the evolving interpretations of workplace boundaries, vicarious liability and power dynamics.

Obiagwu v Greystoke and Pantheon International Advisors Ltd

An executive claimed sexual harassment against a significantly older and more senior colleague.  In this case, during a post-dinner debrief in the colleague’s hotel room following an alcohol-fuelled client event overseas.  The Claimant stated that an incident occurred with Mr Greystoke in his room and while she was typing he began rubbing her arm and her back, telling her that she was beautiful and said to her that if anyone were to ask him to have sex with her he would.

The Tribunal ultimately found in the Claimant’s favour but interestingly made specific reference to “what she refers to as the abuse of trust, the power imbalance and the shock she felt and what she refers to as freezing, not knowing what to do and subsequent self-recrimination for a long time after the Incident.”

Having found in the Claimant’s favour, she was awarded £20,000 for injury to feelings.  The reference to abuse of trust and the power imbalance having relevance to these awards is an interesting point and should persuade employers to exercise caution if they are, perhaps, considering attributing more credibility to a senior employee’s evidence purely by virtue of their seniority or position.

The AB Case – Extending Vicarious Liability to After-Hours Interactions

In this case, the EAT overturned the decision in AB v Grafters Group Ltd.  The facts of this case were that a colleague AB, missed public transport and was offered a lift by a male colleague.  As they were driving, the male colleague slid his hand under AB’s coat and placed it on her abdomen. He kept it there whilst continuing to drive the car and showed her a pornographic video on his mobile phone, making lewd comments thereafter.

Initially, the Tribunal had held that there was no vicarious liability for sexual harassment which had occurred outside working hours, during a car ride to an off-site work location.  The EAT stated that the incident could be “sufficiently connected” to employment, viewing the car as an extension of the working environment. 

This decision expands the scope of what constitutes “in the course of employment” challenging employers to consider liability in peripheral situations which seems timely given the increase in workplace flexibility and more informal interactions outside normal office hours.

These cases arrive amid broader shifts in Employment Law in the UK including the progressing Employment Rights Bill which promises stronger protections against harassment. 

What can Employers Do?

It is always worth bearing in mind that when it comes to sexual harassment there is a rare obligation on employers to show that they have taken reasonable steps to prevent harassment occurring not simply reacted appropriately when it occurs like most other workplace issues.  With that in mind it is vitally important that employers ensure to take those reasonable steps. 

What do those reasonable steps look like?  Ensuring your business has appropriate, up to date policies on harassment and appropriate training is delivered to your colleagues.  It is advisable to have training take place at the start of an employee’s employment and thereafter to have annual training sessions.

It may, also be prudent to consider conducting a harassment risk assessment which will help your business identify specific risks to the business and look at how best to minimise these.