The Court of Appeal recently upheld an appeal against the ‘unduly lenient’ sentence of an individual who was convicted for sexually assaulting one of his colleagues.
Darren Riley was convicted of assault, having groped his colleague on four separate occasions. At the Court of Appeal, his previous sentence of a conditional discharge for 18 months was enhanced to an 18-month community order. The former solicitor general (who brought the appeal against the sentence) stated that Riley “abused the trust of his colleague in order to sexually assault her. His actions have had a continuing effect on the victim and it is in the interest of justice that the sentence be increased”.
This case provides a useful reminder to employers of the potential overlap between the definition of harassment under employment law and harassment amounting to criminal conduct, both of which may impose vicarious liability on an employer.
Under the Equality Act 2010 (EqA 2010), an employer can be liable for harassment by its employees towards their colleagues, whether or not the harassment is done with the employer’s knowledge or approval. However, employers may be able to avoid such liability if they are able to show that they took ‘all reasonable steps’ to prevent the employee from committing the discriminatory act or from doing anything of that description.
Victims of harassment may be able to seek recourse under the Protection from Harassment Act 1997 (PHA 1997), which may also render employers vicariously liable for their employees’ actions.
For a course of conduct to fall within the scope of the PHA 1997, in addition to other relevant limbs, it needs to have taken place on more than one occasion; it must be ‘oppressive and unacceptable’; and the alleged perpetrator must know or ought to know that the course of conduct involves harassment. It is important for employers to bear in mind that even if they can establish the ‘reasonable steps’ defence under the EqA 2010 in relation to a sexual harassment claim, they may still be vicariously liable under the PHA 1997.
Finally, individual perpetrators may, as in the case above, be prosecuted for sexual assault. Although an employer cannot be vicariously liable for this type of offence, it is important to consider at an early stage whether a crime may have been committed to ensure that nothing is done by the employer which could undermine any criminal investigation.
Employers should ensure they follow best practice to be in the best position to be able to defend claims of harassment. Having the right policies and procedures in place, providing clear examples of unacceptable behaviour, is a good start but is not sufficient.
Employers also need to ensure they follow their own procedures and provide regular, meaningful training to managers and staff. Regular risk assessments should be carried out to identify high-risk areas within the business (for example, those with long working hours and/or frequent social events involving alcohol) and action taken to reduce those risks where possible. Employees also need to understand that harassment can constitute a crime.
When an allegation of harassment is made, employers need to tread extremely carefully. Particularly where the allegations involve potential criminal behaviour, they should consider taking early advice from criminal and employment (and, where relevant, regulatory) specialists to ensure their internal investigation does not hamper any investigation the police or a regulator may wish to carry out.
Beth Hale is a partner and general counsel, and Pooja Dasgupta an associate, both at CM Murray