Can my organisation be liable for sexual harassment when lewd jokes are sent around the office by text message or e-mail?

Yes. You may be liable for sexual harassment committed by one of your employees in the course of their employment. This can include circumstances where an employee circulates lewd jokes or pictures by text message or email. You should be aware that compensation for unlawful discrimination (which includes harassment) is uncapped.

Unlawful harassment can occur regardless of whether the offensive e-mail or text message is sent directly to the person in question or whether it concerns them personally. Harassment covers a broad range of behaviour, including physical, verbal, non-verbal and environmental factors. Environmental factors can include explicit sexual talk, lewd jokes and the sharing of pornography. For example, viewing pornographic pictures on a computer in the same office as a colleague who finds such images offensive could amount to harassment.

Harassment can occur even if it is not intended to be harassment. The important issue is whether an individual finds the relevant behaviour threatening or intimidating or that it violates their dignity. However, it may not be harassment if no normal person with the same perceptions and sexual attitudes as the employee making the complaint would have regarded the conduct as offensive.

In today’s technological age, harassment may occur through a number of different channels. To minimise the risk of claims, it is crucial that you take all steps that you possibly can in the circumstances to prevent harassment in the workplace. This may include taking appropriate steps to prevent harassment through the use of text messaging and emails. You may be liable for the actions of your employees even where your organisation did not approve of or know about the harassment.

The Equal Opportunities Commission (EOC) has recently published new guidance for managers on sexual harassment and the steps that an organisation should take to protect itself from claims. There are two basic responsibilities of an employer: prevention and proper complaint handling. Basic preventative steps include:

• Having a clear and well-communicated policy against harassment (including use of email, internet and mobile phones.)




• Training staff and managers on their responsibilities and the policy.




• Ensuring that sexual harassment is a disciplinary offence and that offenders are dealt with; and




• Monitoring your policy regularly.

The basic steps for complaint handling include:

• Having clear procedures for investigating complaints confidentially and without delay.




• Training staff on how to investigate complaints in accordance with procedures.




• Providing appropriate support for the employee who has made the complaint, the alleged harasser and all investigating managers; and




• Taking any appropriate action following the investigation.

The steps suggested above are the minimum steps which should be taken. You will need to consider whether there are any other steps that you could take in order to prevent harassment. In the context of the internet, this may include preventing access to certain internet sites.

Where harassment is found, the Employment Tribunals may order the employer and/or the individual harasser to pay compensation. Compensation will include financial loss, including loss of salary and benefits and an award for injury to feelings. Compensation is unlimited, although injury to feelings awards would not normally amount to more than £25,000.

Harassment is a potentially expensive issue for employers. Sexual harassment ranks in the top five reasons for calling the EOC’s helpline. This suggests that the scope for claims in the future is great and that employers should take time to consider whether they really are taking all appropriate steps to prevent harassment. This will not only help you to defend any claims, but will foster a working environment in which your staff are able to contribute more to your business.

For further information contact Thomas Ince at tince@reedsmith.com or visit www.reedsmith.com

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