We are a care organisation and have received feedback from one of our carers that a European colleague had been attempting to kiss her, and been intimate without being overtly sexual. At the time when he just tried to kiss her, she dismissed it as a cultural issue and thought nothing more of it. The touching of her bottom, calling her a ‘pretty lady’ and asking about her sex life, however, caused her to come to us. We also saw it as cultural issue, told her just to push him away and said we would move him to another site. Unfortunately, we did not get round to this due to operational pressures. She resigned after a period of sickness and we have now heard from ACAS who report her saying that “she had not been listened to by her employer, who simply did not care”
You are in big trouble, as she has a potentially strong claim, and the sickness suggests that the injury to feelings payment could also be substantial.
Your lack of action highlights the risks of choosing to minimise or ignore employee concerns, or to explain these away through matters such as cultural differences, misunderstandings or ‘banter. We often hear people say that banter in the workplace is normal and good fun, and helps people enjoy being at work – but there is a fine line between banter and harassment, which can often become blurred. His behaviour might also be defined as flirting, but the moment it becomes uncomfortable, then it is probably sexual harassment. Such behaviour can create a hazardous environment for employers to manage. From a legal perspective, the effect of discrimination and harassment is assessed subjectively, i.e. from the claimant’s point of view. Your failure to move him and to take effective disciplinary action means that you are responsible as your statutory defence of having done everything possible to prevent such conduct has clearly no chance because you have probably not done all that was reasonable in the circumstances. We recognise that a diverse workforce will often lead to cultural misunderstandings but this does not justify doing little or nothing to create a safe dignified work environment.
There are several things you need to do:
1) Deal with this man based on your procedures, his length of service and what seems fair/pragmatic
2) Settle the claim with this woman as quickly, economically and sensitively as possible
3) Take effective action to prevent a recurrence
This means that your managers need to create a positive and inclusive culture which values individuals’ dignity and encourages respect. This will involve training at all levels, applying clear policies and enforcing them effectively. We understand that operational pressures make life difficult but nothing like as much as an unwinnable tribunal with all the attendant cost, time and publicity implications.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.