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Question:	I’ve been sexually harassed by a colleague at the Christmas party. Is my employer liable for his actions?
Answer:	An employer may be ‘vicariously’ liable in these circumstances under the Sex Discrimination Act (to be replaced by the Equality Act from the 1^st October 2010). The Equality Act 2010 imposes liability for the acts of employees done ‘in the course of employment’, including potentially acts outside work time or off the premises. In the so called Bernard Manning case (Burton and Rhule v De Vere Hotels [1996] IRLR 596, EAT), the employer was a hotel which was found liable for the racist jokes made about their waitresses working at an event by comic Bernard Manning, as well as the behaviour of guests. The Employment Appeals Tribunal took the view that the employer had ‘subjected’ the employee to harassment by allowing the this behaviour to continue. The EAT commented that it would have been a good idea to keep a look out for trouble and withdraw the waitresses when things turned nasty. However in Pearce v Governing Body of Mayfield Secondary School [2000] IRLR 548 though, the House of Lords held that the failure to take reasonable steps to prevent an employee from racial or sexual abuse was discrimination only where the reason for that failure to act amounted to race or sex discrimination. Even if the employer is not therefore liable under the Sex Discrimination Act for the (drunken) acts of a colleague at a Christmas party, it is still arguable that this gives rise to a potential Constructive Unfair Dismissal Claim due to the employer’s failure to provide a working environment free from harassment. See also our page on injury to feelings
James Carmody Employment Solicitor Reculver Solicitors 12-16 Clerkenwell Road London EC1M 5PQ www.reculversolicitors.co.uk info@reculversolicitors.co.uk Tel 0207 324 6271 Regulated by the Solicitors Regulation Authority © Reculver Solicitors. 2005-