Out-Law Analysis | 19 Mar 2021 | 10:42 am | 4 min. read
With women's safety and harassment a current focus for the press and social media discussion, employers may be facing queries from staff about their policies.
These issues raise potential questions of employment law, including about the extent of employers' duties to keep their employees, particularly those in groups perceived as vulnerable, safe.
Broadly, employers have duties to ensure the health and safety of their employees while "at work", and are not generally responsible for the safety of employees travelling to and from their usual place of work.
However, employers do have additional responsibility where employees travel away from their normal workplace - for example, if they are travelling to visit clients; between different premises used by their employer; or work in people's homes. In these circumstances, the employer must conduct a risk assessment to identify any foreseeable risks associated with travel, and take steps to address those risks. Personal safety will be a factor, but other important risks which need to be managed are fatigue and occupational road risk.
Employers must carefully consider the safety of employees, contractors and visitors to their business premises. These duties extend not just to the building itself but also to the car park, landscaped areas and walkways. There must be adequate arrangements in place to ensure pedestrian and vehicle segregation, and to ensure that pedestrian areas are maintained in a condition which is safe and well-lit.
Lone workers, by the nature of what they do, do not have the usual levels of supervision or access to emergency assistance. It is therefore crucial that employers explicitly assess and manage the risks to these workers.
Employers do have additional responsibility where employees travel away from their normal workplace - for example, if they are travelling to visit clients
Lone workers are exposed to particular risks to their health and safety while they are at work. These include the risk of violence at work, and stress and risks to mental health.
Special training may be required, and arrangements must be put in place to provide alternative means of supervising and monitoring lone workers. This must include a means to contact the employer in an emergency situation.
Employers need to ensure that any steps that they do take in an attempt to address perceived risks to the safety of a particular group of employees do not inadvertently result in disadvantage to members of that group, and the potential for discrimination claims.
This is an issue often seen around pregnancy, when employers take disproportionate and paternalistic measures with the intention of protecting pregnant employees without considering the disadvantage that they may suffer as a result. A recent Employment Appeal Tribunal (EAT) decision, Chief Constable of Devon and Cornwall Police v Town, is a classic example of this: a pregnant employee was removed from front line duties on the basis of her pregnancy, which her employer saw as a step to protect her; which she saw as a disadvantage and successfully brought a claim of pregnancy and indirect sex discrimination.
Employers can easily fall into the same trap in relation to employee safety if they do not properly consider the impact of proposed measures. For example, discouraging female or LGBTQ+ employees from attending out-of-hours events because of concerns about their safety could easily result in disadvantage. Employers proposing new safety measures as a result of the current focus on women's safety should engage with relevant stakeholders – for example internal women's networks, health and safety representatives and trade unions, where applicable – to understand any concerns about unintended consequences before implementation.
Where unlawful harassment occurs in, or connected to, the workplace, there is a risk that the employer may be liable for such acts, depending on the circumstances.
Dr Anne Sammon
Discouraging female or LGBTQ+ employees from attending out-of-hours events because of concerns about their safety could easily result in disadvantage
There are two distinct types of harassment that may be relevant here, each with a slightly different definition: harassment related to a protected characteristic; and sexual harassment. There is a separate basis for harassment where a worker is treated less favourably because they submit to or reject sexual harassment, but that is outside the scope of this article.
In the former, harassment occurs when someone engages in unwanted behaviour which is related to a protected characteristic that has the purpose or effect of violating another person's dignity or creating a degrading, humiliating, hostile, intimidating or offensive environment for that person. Sexual harassment has a similar definition and occurs when someone engages in unwanted behaviour of a sexual nature that has the purpose or effect of violating another person's dignity or creating a degrading, humiliating, hostile, intimidating or offensive environment for that person.
Employers will be liable for harassment by their employees that occurs in the course of employment, unless they can show that they took all reasonable steps to prevent the harassment. However, this can be a complex area and legal advice should be sought about the particular circumstances of any case. In some cases, it is relatively easy to identify that something has occurred 'in the course of employment' – for example, where one employee harasses another employee at the office. The issue becomes more complex where it relates to events outside of the workplace but connected with work – for example, an issue that occurs in the pub between two work colleagues, or between two colleagues at one of their homes.
For the "all reasonable steps" defence to apply, the steps must have been taken before the act of harassment occurred. Taking action in response to a complaint or allegation of harassment won't be sufficient. What are considered to be reasonable steps will vary depending on the nature of the employer, including its size and resources. However, the mere existence of an anti-harassment or equivalent policy alone will not be sufficient.
Reasonable steps generally include, but are not necessarily limited to, the regular review of any policy to ensure it remains fit for purpose; ensuring that employees are aware of any policy; appropriate training; and taking steps to deal effectively with any harassment complaints. Importantly, as the requirement is to take "all" reasonable steps, if there is anything else that the employer could reasonably have done to prevent the harassment, it will not succeed in running the defence.
21 Jan 2021
19 Jul 2019