The case of a Shearman & Sterling associate being sacked after allegedly sexually harassing a vacation scheme student has highlighted the complexities of the law relating to harassment in the workplace. The law has grown with the development of discrimination law, which now prohibits discrimination on the grounds of gender, race, disability, age, religion or belief and sexual orientation.
However, as was highlighted in the Shearman case, in which the firm refused to accept responsibility for the associate’s actions on a night out, employers and employees are unclear as to when inappropriate conduct may constitute harassment, and the extent to which employers may be called to account for it.
The statutory definition of harassment is as follows: person A subjects person B to harassment where, on a prohibited ground, A engages in unwanted conduct which has the effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In a culturally diverse workplace, what may in practice be considered acceptable by some will be regarded as unacceptable by others. An employee who is quite unreasonably oversensitive is unlikely to succeed in a harassment claim where their employer and colleagues do not share his or her perceptions.
Many employers have comprehensive diversity and equal opportunities policies, which are incorporated into the induction programme for new staff and reinforced in communications to staff. But is this enough? An employer is vicariously liable for its employees’ acts of harassment, but has a defence where it can show that it has taken such steps as were reasonably practicable to prevent the conduct of the kind complained of.
This is more easily said than done, though, since even comprehensive training of all staff will not always prevent inappropriate behaviour. What’s more, the law was extended earlier this year to render employers liable for acts of sexual harassment by third parties.
As was the case in the alleged Shearman incident, an employer may not be aware when offending conduct occurs. This can be especially true if the harassment comes from a ‘remote’ source. In the absence of regularly monitoring staff emails, for example, it may be difficult to protect staff.
A diversity and equal opportunities policy will no doubt include the procedure by which those who believe they are being harassed may complain. Often, employees are given a choice between taking formal or informal action. But in either instance the complaint must be treated in confidence and, so far as possible, in accordance with the employee’s wishes.
This may not always be practicable.
In Ladele v London Borough of Islington (2008), Lillian Ladele had worked for
the council as a registrar of births, marriages and deaths, from 1992. On the introduction of civil marriage ceremonies for same-sex couples, she spoke in confidence to her line manager. She had a strong religious conviction with respect to the nature of marriage and wished not to be required to conduct civil ceremonies for same-sex couples. Regrettably, this was disclosed to her colleagues, who in turn disclosed it to the Camden Lesbian Gay Bisexual & Transgender Forum. Over time Ms Ladele found that she was shunned by her colleagues. She sued for religious discrimination and harassment. The employment tribunal found she had suffered a detriment and, as the breach of confidentiality amounted to unwanted conduct, she had suffered harassment.
Harassment takes many forms and law firms, like all businesses, remain open to claims of harassment, even though they cannot directly control the behaviour of their employees.