A female employee has complained to HR about another member of staff who, she claims, is pestering her with unwanted attention. Esther Smith and Martin Brewer advise on the next steps to take.

The question:

I have been approached by a member of staff, E, who claims that she is being pestered by a male member of staff, J.

E says that J seems fascinated by everything she says and does and is constantly either trying to pull her into conversations or barging in to her conversations with others. He has asked her out on dates several times, which she did not accept, and waited outside the office to walk with her to the bus station. She has ignored him, she has scolded him, she has asked him to please leave her alone.

If this were not enough, there are two further problems:
1) E has approached her line manager about getting J to knock it off. Line manager has, according to E, done nothing at all and thinks it’s ‘cute’; she has even asked E why she won’t go out with J since he wants it so much.
2) J has acquired E’s personal mobile number from somewhere (E did not give it to him) and yesterday evening left messages on it begging her to go out with him. E has played them to me – they certainly sound like J and come from a number which we have in our records for J.

E says that she has piles of documentation and wishes HR to do something, she doesn’t mind what, to get J to leave her alone. She says that she fears J arriving at her home and also that if things do not change she will seek legal advice.

Legal advice:

Esther Smith, partner, Thomas Eggar

I think that you should be treating E’s complaint about the behaviour of J as a grievance and investigating her complaints and allegations accordingly. If he is doing what she says, it is clearly inappropriate and could very easily amount to sexual harassment. This may well result in a liability on both the company and him as an individual. If E is a good employee, and nothing you say suggests she is not, you may also loose her, and that could also result in a claim of constructive dismissal.

Whilst E does not appear to have complained in writing, which is one of the requirements of the statutory procedures, you do have a duty of care to E and indeed to J and all other employees, and not to take action on the back of what E has told you would be in breach of that duty. J could behave in this way to others, or indeed if E is making it up, action should be taken against her.

Ask E to put her complaints in writing, but if she doesn’t, make a note of what she says and use this as the basis of the investigation. Obviously, until you have investigated it is hard to say what the outcome could or should be, so you need to play this by ear. It may well be that J does not appreciate that his actions are as unwelcome as they are, or that E is only telling you half the story, but you do need to address this.

If the investigation establishes that E is telling the truth, and J does not cease his attentions then you could be looking at a dismissal on the grounds of some other substantial reason.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

This is starting to sound like harassment and possibly sexual harassment. The simple way to deal with this is to get a more senior manager to speak to J, and explain informally what the problem is and tell him to stop. Tell him if his unwanted attention continues it will become a formal disciplinary matter. Tell E to note down anything she considers oversteps an acceptable line going forward and, if necessary, discipline J.

There are two other things you must do. First E’s line manager needs a bit of a ticking off for not taking this seriously. Second, it sounds as though the organisation could benefit from some discrimination awareness training to avoid this sort of thing becoming an issue in future.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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