The festive season: harassment at the office party scenario

The situation

X Ltd is a large firm specialising in the retail and distribution of software products. Following its Christmas party the HR director is approached by one of its female employees, Sarah. Sarah tells the HR director that one of X Ltd's male employees, Pete, came up to her at the Christmas party and made several derogatory comments about the size of her breasts, saying that 'she needed a good man' and that he would like to give her a good time in bed. He then pulled down her dress and made more disparaging comments. She left the party in tears.

X Ltd is concerned both about the best way to deal with the situation so as to avoid a discrimination claim against the company and about how to safeguard against such claims in the future.

Advice

How X Ltd should deal with the complaint

X Ltd must be sure to deal with the situation immediately. In doing so it must first of all conduct a full and confidential investigation into all the facts. It is important that it prepare a note of its findings covering only the facts of the situation, bearing in mind that this information may need to be disclosed to an employment tribunal at a later date.

In addition X Ltd should consider offering access to a counsellor or welfare officer for Sarah and it must take all reasonable steps to ensure that she is not victimised for having made the complaint.

Once the investigation is complete, it may be necessary for the company to hold a disciplinary hearing. Pete should be given the right of accompaniment and the person hearing the matter should not be the person who investigated it. He should also be given a right of appeal against whatever disciplinary sanction may be imposed.

X Ltd should also be careful to avoid jumping to conclusions. Pete is innocent until proven guilty and he should be treated fairly, informed of the allegations and given every opportunity to put his side of the story.

Will X Ltd be liable for Pete's behaviour?

Sarah will have three months from the date of the alleged harassment in which to bring a claim against X Ltd and Pete.

Even though it did not commit the acts of harassment, and is dealing properly with the complaint, X Ltd is potentially liable for sex discrimination unless it can prove that:

  • Pete's behaviour took place outside the course of employment; or

  • it had taken such steps as were reasonably practicable to prevent the harassment from taking place.

    X Ltd could also face a claim of constructive dismissal from Sarah if it fails to take her complaint seriously, and a claim for unfair dismissal from Pete if it dismisses him in a manner that is unreasonable in all the circumstances.

    Sexual harassment?

    The first factor to be considered is whether Pete's behaviour amounted to sexual harassment. The incidents that occurred at the office party between Sarah and Pete are clear examples of harassment because they are instances of unwanted conduct based upon sex that affect the dignity of another. One-off incidents can also amount to harassment if they are sufficiently serious.

    Outside the course of employment?

    The second factor to be considered is whether the harassment took place outside the course of employment. If it did, then X Ltd should be able to avoid liability. However, recent case law indicates that an office party would fall within the scope of the legislation. Although in one case a racial assault by an employee on a colleague during a family day out organised by an employer was found not to have taken place in the course of employment, in another, sexual harassment that occurred in a pub immediately following work and continued at an employee's leaving party was found to have taken place in the course of employment. The reasoning behind the decision in the first case was that the assault happened in a public place during the employee's own time and the majority of the attendees at the event were friends or relatives rather than employees. Thus where X Ltd's Christmas party took place and who attended it may influence a tribunal's decision as to whether it was 'in the course of employment'. If X Ltd organised the party, it took place on office premises and the majority of the attendees were employees, a tribunal is far more likely to rule that it took place 'in the course of employment'.

    Employers' statutory defence

    A final issue is whether X Ltd had taken such steps as were reasonably practicable to prevent the harassment from taking place. If it had, then it should have a good chance of avoiding liability. Reasonably practicable steps include:

  • implementing and enforcing an anti-harassment policy that clearly refers to work-related events outside the immediate workplace;

  • treating any complaints seriously and in accordance with the anti-harassment policy;

  • ensuring that the policy has management backing and is supported by sufficient disciplinary sanctions;

  • sending an e-mail reminding staff about the policy prior to office parties or events;

  • keeping employees updated on any changes to the policy as a result of changes in the law;

  • ensuring that employees are treated consistently in terms of their behaviour but ensuring that personal circumstances are considered in each individual case;

  • not encouraging or allowing drunkenness at company functions (to do this it may help to limit any tab behind the bar).

    If X Ltd has taken most of these steps then it will have a good chance of successfully defending any sex discrimination claim from Sarah. If not, it is likely to be liable for Pete's sexual harassment.

    Compensation payable to Sarah

    There is no limit on the amount of compensation that an employment tribunal would be able to award to Sarah and damages could include compensation for injury to feelings as well as for financial loss. The decision in a tribunal case in 1998 with similar facts to X Ltd's scenario indicates that Sarah could be awarded compensation of up to £10,000 for injury to feelings.

    Next week's article will consider some frequently asked questions regarding the festive period and work.

    Victoria Parry is a partner at Osborne Clarke (victoria.parry@osborneclarke.com)

    Further information on Osborne Clarke can be accessed at www.osborneclarke.com