When you know an employee has been sexually harassing another outside work

You maybe of the view that because what you’re aware of is happening outside of work, that the employer has no responsibility or need to get involved. However, there are a couple of different angles that you need to think about the situation from.

Firstly, if the employee concerned is affected by what is going on outside of work, bringing that with them to the work place means it comes into your domain. For example, the persons performance might be affected. If they are mistreated my somebody who is in power, because of something that has gone on outside of work, for example, they’ve rejected somebody’s sexual advances and they’re now being excluded in work, treated detrimentally and otherwise facing negative consequences for having done that, this falls fairly and squarely into the definition of sexual harassment under the Equality Act. Unfavourable treatment for being rejected or submitted to harassment is a separate head of harassment within the harassment category.

Secondly, the relationship between what is classed as occurring in the course of employment and what is truly outside of employment has been developing significantly in recent years. You’ll appreciate that if the harassment is occurring at a work related event, such as a social event and there is a connection with work, the law protects the employee as if it has occurred in the workplace. This has been stretched in recent years in astonishing cases expecting the employer to be responsible, for example, for the person stabbing someone in a petrol forecourt, someone punching an employee to the ground causing him brain damage or being in a hotel in the wee hours long after the work-related social event. What happens in these vicarious lability cases is that the courts are making a judgement about responsibility. At the very least you might want to be drawing to somebody’s attention that you’re aware of certain behaviours and enquiring with the person if they’re happy with those behaviours, signalling that if they’re not, you’d be prepared to address them. Often one of the reasons why people don’t report is they feel nobody will take them seriously and tackle the problem person.

Thirdly, if this kind of behaviour is taking place in circumstances that has a connection with work, even if it is a group of people going out informally after work and socialising, you need to think carefully about the messages that are being sent to staff. Is it inappropriate for example, for a much older male employee to have the reputation as predatory in these contexts? If this kind of reputation is forming this is now becoming a workplace issue because all the other colleagues concerned will be talking about the protagonist, the behaviour, the vulnerable etc. If the organisation is not tackling those behaviours, and the people with those reputations, it can only be a matter of time before the person concerned becomes so confident in their behaviour that they feel they can get away with it in the workplace, despite whatever policies or procedures you might have.

Often people will leave rather than raise complaints about bullying and harassment. If you have got protagonists of this nature in the business how many good people are you losing and how much talent is being wasted as a result of turning a blind eye to these sorts of issues?

You have a broad duty of care towards your employees, which even if the law doesn’t specifically require you to do something, employees will morally expect you to do something. There may be circumstances in which you decide you need to conduct an investigation and invoke the disciplinary procedure even if an alleged victim has not yet made or doesn’t wish to make an official complaint. You should take advice in any given case as the employer is always going to have to tread carefully, in particular respecting the rights of the person who a complaint may potentially be about. The investigation is always going to be necessary otherwise the person being investigated as a perpetrator may have a claim for constructive dismissal in connection with a breach of trust and confidence.